Download Grooming Tomorrow`s Change Agents: The Role of Law Schools in

Grooming Tomorrow’s Change Agents: The Role of
Law Schools in Helping to Create a Just Society
Jonathan A. Rapping*
Numerous authorities have lamented the fact that America’s criminal
justice system is broken. To address this crisis, experts proposed a range
of policy proscriptions. But, these proposals overlook a fundamental
driver of this state of injustice. The criminal justice system, as it now
exists, is defined by a value system inconsistent with justice. And many
professionals responsible for administering criminal justice—politicians,
judges, prosecutors, and defense counsel—have been shaped by this
corrupted value system. As a result, those responsible for justice in
America frequently promote unjust outcomes. If we are ever to realize
meaningful reform, we must groom a generation of professionals who
embrace those ideals fundamental to American justice, and work
together to infuse the criminal justice system with these values. Because
so many of these professionals are lawyers, our nation’s law schools
must play an indispensable role in this effort. Critics have identified
some significant shortcomings in legal education. Many pointed to the
failure of law schools to teach skills and values essential to the practice
of law. Some have urged law schools to inspire graduates to find careers
that promote the public interest. But largely overlooked is the need to
equip lawyers with strategies to promote justice in broken systems. If
law schools are going to fulfill their obligation to help us realize our
most noble ideals, they must develop curricula designed to not only teach
lawyers values and motivate them towards social justice careers, but to
also arm them with tools to resist systems hostile to the principles that
define us as a nation. This article discusses this challenge and examines
two efforts to equip young lawyers with tools and strategies to become
the change agents necessary to drive reform; one through an innovative
*
Jonathan A. Rapping is an Associate Professor at Atlanta’s John Marshall Law School
(AJMLS) where he also serves as the Director of its Honors Program in Criminal Justice. He is the
Founder and President of Gideon’s Promise, an organization dedicated to creating a generation of
public defenders to drive a transformation in criminal justice. He is currently on leave from AJMLS
to serve as the Director of Strategic Planning and Organizational Development for the Maryland
Office of Public Defense. Special thanks to Elayne Rapping for her editorial advice, Jasmine Barber
for her research assistance, the faculty of AJMLS for its commitment to the Honors Program in
Criminal Justice, and the staff, faculty, and public defenders of Gideon’s Promise for working to
change the culture of criminal justice in our nation’s most broken systems.
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law school curricula and the other through the training and mentoring of
lawyers post law school in the crucial arena of indigent defense.
I. INTRODUCTION
As I sat down to begin writing this introduction, a friend sent me an article
about Jeff Mizansky, a Missouri man who has already served twenty-one years of a
sentence of life without parole for a non-violent marijuana offense. Jeff was
caught on surveillance tape accompanying another man to purchase a significant
amount of marijuana. He never touched the marijuana. No firearms or minors
were involved. And while he had two prior convictions for non-violent marijuana
crimes, he never served a day in prison before this sentence. Before I became a
student of criminal justice in America, I would have been shocked. As I read this
account, I was sadly not surprised. The story is not exceptional. Lawmakers
routinely support unconscionable laws in an effort to appear tough on crime,
without regard for the human lives or the foundational principles that define our
democracy that they trash in the process. Throw in a prosecutor who uses every
tool available to coerce the accused into giving up his constitutional rights, a
defender too overburdened to begin to sufficiently defend him, and a judge more
concerned about moving a massive docket efficiently than ensuring the results are
fair, and this is the story of justice in America.1
The United States of America locks up its citizens at a significantly higher
rate than any other country in the world.2 In the past four decades the breadth of
criminalized behavior has ballooned and punishment has become increasingly
more draconian.3 More non-violent offenders are locked away in inhumane
conditions for longer periods of time here than anywhere else.4 Such is the story of
the “Land of the Free.”
This mass incarceration crisis does not impact all of us equally. Eightypercent of those brought into the criminal justice system are severely
1
I do not know, nor suggest, the extent to which these generalizations describe the behavior
of the criminal justice professionals in Mr. Mizansky’s case. But the described behavior is all too
common and frequently combines to drive outcomes similarly unjust as Mr. Mizansky’s.
2
Peter Wagner, Leah Sakala & Josh Begley, States of Incarceration: The Global Context,
PRISON POLICY INITIATIVE, http://www.prisonpolicy.org/global/ (last visited May 24, 2015) (showing
that not only does the United States have the highest incarceration rate of any country, but that thirtysix states and the District of Columbia have higher incarceration rates than any country in the world
other than the United States).
3
Jonathan A. Rapping, Who’s Guarding the Henhouse? How the American Prosecutor
Came to Devour Those He is Sworn to Protect, 51 WASHBURN L. J. 513, 534 (2013) [hereinafter
Henhouse] (portions of the discussion in this section come directly from Henhouse).
4
Id. See also John Conyers, Jr., The Incarceration Explosion, 31 YALE L. & POL’Y REV. 377,
385 (“Mandatory sentences, long sentences for nonviolent first offenses, and laws mandating
increased penalties for repeat offenders lead to overincarceration.”).
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impoverished.5 They are disproportionately non-white.6 If you are poor and of
color, you are significantly more likely to be surveilled, arrested, charged,
prosecuted, convicted, sentenced to a lengthy term of imprisonment, and subjected
to collateral consequences.7 Such is the hypocrisy of our “equal justice under the
law.”
And those who are responsible for administering a system of justice that, in
theory, is meant to ensure every individual’s fundamental protections before being
deprived of his or her liberty, has lost sight of this role. Roughly ninety-seven
percent of those accused of a crime plead guilty and give up their rights to avail
themselves of the myriad of protections our Founding Fathers deemed essential to
ensure justice.8 Prosecutors are more adept at coercing pleas than at ferreting out
truth. Public defenders are too overwhelmed to ensure their clients receive all the
protections those who penned the Bill of Rights envisioned, and judges have
become resigned to a role of overseeing a massive operation that processes people
from arrest to sentencing. Such is the reality of “due process.”
There is no better gauge of the health of American democracy than the way
human beings are treated in our criminal justice system. At the very core of who
we are as a nation is a deep-seated respect for individual liberty and an
appreciation of the need to jealously guard it against the inherent abuses of
government. Our nation is founded on the idea that a government unchecked
morphs into tyranny, threatening the ideals that define us as a nation. Our
Founding Fathers painstakingly laid out a set of individual rights deemed essential
to a democratic society. They serve as protections, creating a buffer between the
individual and the State when the latter threatens the liberty of the former.
Our commitment to these principles depends on the idea that justice is
independent of one’s station in life. They are to be applied fairly and with an even
hand, blind to issues such as class and race.
Sadly, we have abandoned those ideals in the very realm where individual
liberty is most threatened, the criminal justice arena, leaving all of us subject to the
tyranny our founders so recoiled against. And while this abandonment undermines
who we claim to be as Americans, to further reinforce how this jeopardizes our
democracy, the government has used its unchecked power to disproportionately
victimize the most vulnerable among us.
Today, our criminal justice system represents an enormous, largely
unchecked, government effort to subject Americans to increasingly harsh
deprivations of liberty. This effort is almost exclusively aimed at our poorest
citizens and disproportionately at those who are of color. At every level, our
5
Jonathan A. Rapping, Implicitly Unjust: How Defenders Can Affect Systemic Racist
Assumptions, 16 N.Y.U. J. LEGIS. & PUB. POL’Y 999, 1018 (2013).
6
Id.
7
Id. at 1006.
8
WILLIAM J. STUNTZ, THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE 7 (2011).
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nation’s law enforcement machinery violates our most cherished ideals.
Everything we stand for as a nation is tarnished by our failure to administer
criminal justice consistent with our ideals.
Much has been written about how broken our criminal justice system is and
what we need to do to right its wayward course. The discourse primarily focuses
on the need for policy reform—reallocating resources and engaging in structural
modifications. But, too little attention is paid to the role that individuals at every
level of the system—driven by a misguided set of values and assumptions—have
come to accept, thus perpetuating the current state of injustice. If we are to truly
transform the criminal justice system in the image of what we purport it to be as
Americans, we will need to inspire criminal justice professionals to reexamine
their roles in promoting justice and prepare them with a set of strategies to
transform the status quo.
In this article I argue that the transformation begins with the role of law
schools in preparing legal professionals for their work. Because discussions about
criminal justice reform have overlooked the values and assumptions that shape our
collective behavior involving the administration of criminal justice, they have
failed to consider the role—indeed, the obligation I would argue—that America’s
law schools might play in propelling criminal justice reform. Because the ideals
that form the bulwark of our criminal justice system rank among the most
cherished of all legal (and human) concepts, law schools should address these
challenges prominently in their curricula. Because so many of the people who
influence and drive criminal justice are lawyers, law schools are uniquely
positioned to affect change. And, because law schools have a monopoly on how
lawyers are educated, they have an obligation to address this national crisis.
But, law schools collectively fall well short of meeting this obligation. In
fact, an entire body of scholarship is devoted to examining how law schools fail to
even train graduates to practice law generally, let alone inspire them to address our
nation’s greatest challenges and teach them to do so effectively. This article
argues that law schools play a critical role in reforming our criminal justice system
and, thereby, helping to restore our democratic ideals. But to do so, we must move
beyond a discussion of simply how to better prepare graduates to be “practiceready.” We need to also inspire lawyers to commit their talents to address issues
that threaten our ideals. But even this is not enough. We must also provide our
graduates with tools to reshape these systems. Our nation’s criminal justice system
does not only need good lawyers, it also needs an army of change agents to reshape
it. Law schools must begin building that army.
In the first part of this paper I posit that an examination of the administration
of our criminal justice system provides the most accurate insight into the extent to
which we are living up to our democratic ideals. I further argue that based on this
metric, we have fallen well short of realizing who we claim to be as Americans.
In the next section I argue that the greatest obstacle to reforming our criminal
justice system is the fact that the professionals who work within it have come to
embrace a set of values and assumptions that are inconsistent with our
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constitutional ideals. Having lost sight of the founding values and goals that
define American justice, this group of professionals is incapable of overseeing a
transformation of this system.
I next argue that because we have failed to sufficiently appreciate this aspect
of the problem, little attention has been given to the need to develop a community
of criminal justice professionals who appreciate and embrace those values so
essential to our democracy, and who are equipped with the necessary tools to
ensure our criminal justice system operates consistently with them. Because so
many of these professionals must graduate from one of our nation’s law schools,
these institutions play a critical role in any criminal justice reform effort.
I next turn to an examination of law school curricula and the ways in which it
fails to prepare the criminal justice professionals needed for this effort. I argue
that if law schools are to respond to this crisis, they must reimagine a curriculum
that does three things: better prepares students to practice in the field of criminal
law, inspires students to consider careers in criminal law, and provides students
with a set of tools and strategies to transform the systems in which they work to be
in accord with our founding principles of justice. This section will build on a body
of scholarship that discusses legal academia’s failure to produce “practice-ready”
graduates and suggests that addressing this concern is the first step in the instant
analysis. Little has been written about the need to encourage students to consider
careers that promote public interest. And less still considers how to prepare
students who are so inclined to serve as change agents in dysfunctional legal
environments. This section will address these concerns.
I finally look to two initiatives that are instructive for this discussion. First,
examining the work of the non-profit organization Gideon’s Promise, I
demonstrate how its model for developing a community of reform-minded public
defenders is doing this with recent law graduates. However, it is unfortunately left
to do the work that should have been part of these lawyers’ legal education. I next
discuss an initiative called the Honors Program in Criminal Justice, launched at
Atlanta’s John Marshall Law School in 2011. This program serves as a template
for law schools committed to preparing criminal justice practitioners who view
their role as working to reshape the criminal justice system to better realize our
Founding Father’s notion of justice, and who are equipped with strategies for
doing so.
While both of these efforts are important examples of the work that
desperately needs to be done if we are to transform our system of justice, we must
more widely embrace the idea of values-based training for all criminal justice
professionals if we are to ever realize meaningful reform. Law schools must
become a partner in this process.
II. AMERICAN CRIMINAL JUSTICE: A REFLECTION OF OUR HIGHEST IDEALS
Before turning to the role of law schools, let us look briefly at the originating
ideas that form the basis of what law schools are tasked to teach about justice. For
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nearly 600 years before the drafting of the United States Constitution, dating back
to the Magna Carta,9 our constitutional forefathers struggled to rein in the power of
the king and to ensure individual liberty was protected.10 This experience
informed the attitudes of early American colonists, who came to the New World
with a strong distrust of authority and an acute understanding of how, without
sufficient safeguards, government will become oppressive towards those it
governs.11 The struggle with the Crown continued in colonial America, and as the
king’s representatives did his bidding in the colonies, that distrust grew to include
all government agents.12 Justice in early America was focused on protecting the
individual against the excesses of government, as the colonists understood that a
government unchecked led to tyranny. The men who drafted the American
Constitution carefully constructed procedural protections designed to limit the
power of the government and to secure citizens’ substantive rights. Because they
knew from experience that unchecked power and liberty are naturally antagonistic,
these safeguards were indispensable to the constitutional democracy they designed.
Those rights deemed most fundamental to our core ideals were laid out in the
Bill of Rights and served to protect the rights of the minority against an oppressive
government representing the will of the majority.13 The values reflected in the Bill
of Rights were meant to influence many aspects of American society, but in no
arena was its influence more imperative than criminal justice, where an
overreaching government poses the greatest threat to individual liberty. The
experience with King George III and his minions taught American colonists about
the “voracious persistence with which government power seeks to avoid the legal
limits that secure our rights.”14 The Constitution, and accompanying Bill of
Rights, would serve as a bulwark against this threat. Three features of the
American system of procedural safeguards most essential to protecting the people
from the despotic inclinations of government include the right to counsel, trial by
jury, and an independent judiciary. These three protections are as fundamental to
the health of our democracy as any.
Fundamental to our system of justice is the notion, which can be traced back
to the Magna Carta, that before one may be deprived of his or her liberty by his
government, the fight must be fair. The accused must have the opportunity to
prepare his defense, to challenge the allegations against him, and to ensure that
basic rights are protected in the process. As the Supreme Court made clear in the
9
See IRA GLASSER, VISIONS OF LIBERTY: THE BILL OF RIGHTS FOR ALL AMERICANS 21–61
(1991) (providing an excellent summary of the development of those principles fundamental to the
American Constitution dating back to the Magna Carta, Latin for “Great Charter” and agreed upon in
1215).
10
See Henhouse, supra note 3, at 523–28.
11
Id.
12
See id. at 524.
13
See GLASSER, supra note 9, at 41.
14
See id. at 27.
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seminal case of Powell v. Alabama, none of these values can be realized without a
lawyer “skill[ed] in the science of law.”15 In every criminal case, a lawyer must
have the time and skill to undertake essential preparatory tasks such as conducting
investigation, seeking discovery, and researching and litigating pre-trial motions.16
A lawyer must be available to protect the accused’s “fundamental rights”; i.e.,
those Constitutional rights deemed “essential to a fair trial.”17 Every safeguard the
Framers viewed as foundational to our system of justice is at risk without counsel
to ensure their protection.
In addition to having a lawyer to protect the accused’s most basic rights, the
framers viewed the right to trial by jury as “an inestimable safeguard against the
corrupt or overzealous prosecutor.”18 Our forefathers’ experience in England left
them fearful of the unchecked power of government.19 As Professor Paul Butler
reminds us “The Constitution was written by men who were very suspicious of the
power of Government. Prosecutors were viewed as a necessary evil, but the
framers didn’t trust them much. Thus the right to trial by jury was guaranteed in
the Bill of Rights.”20
“The jury remains one of the nation’s most vital democratic institutions,
enabling ordinary citizens to block tyrannical actions by government.”21 This
15
Powell v. Alabama, 287 U.S. 45, 68–69 (1932). The Court discussed the importance of
counsel as follows:
The right to be heard would be, in many cases, of little avail if it did not comprehend the
right to be heard by counsel. Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime, he is incapable,
generally, of determining for himself whether the indictment is good or bad. He is
unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on
trial without a proper charge, and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge
adequately to prepare his defense, even though he have a perfect one. He requires the
guiding hand of counsel at every step in the proceedings against him. Without it, though
he be not guilty, he faces the danger of conviction because he does not know how to
establish his innocence. If that be true of men of intelligence, how much more true is it
of the ignorant and illiterate, or those of feeble intellect.
16
See Jonathan A. Rapping, You Can’t Build on Shaky Ground: Laying the Foundation For
Indigent Defense Reform Through Values-Based Recruitment, Training, and Mentoring, 3 HARV. L.
& POL’Y REV. 161, 169–70 (2009) [hereinafter Shaky Ground].
17
Gideon v. Wainwright, 372 U.S. 335, 343–44 (1963). In addition to the right to counsel
and to trial by jury, which are discussed more fully in this article, included among these fundamental
rights are the right to be free from unreasonable searches and seizures and to have excluded from
criminal trials any evidence illegally seized, to be free of compelled self-incrimination, to a speedy
and public trial, to confront opposing witnesses, and to compulsory process to secure witnesses for
one’s defense. See Duncan v. Louisiana, 391 U.S. 145, 148–49 (1968) (laying out the rights held to
be fundamental).
18
Duncan, 391 U.S. at 156.
19
See Nancy J. King, Duncan v. Louisiana: How Bigotry in the Bayou Led to the Federal
Regulation of State Juries, in CRIMINAL PROCEDURE STORIES 276–77 (Carol S. Steiker ed., 2006).
20
PAUL BUTLER, LET’S GET FREE: A HIP-HOP THEORY OF JUSTICE 61 (2009).
21
King, supra note 19, at 261.
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sacred right was recognized as “inherent and invaluable to every [colonist]”22 and
is enshrined in both the body of our Constitution and the Sixth Amendment to the
Bill of Rights.23 In finding the right to trial by jury in a criminal case to be
fundamental to our system of justice, the Supreme Court made clear in Duncan v.
Louisiana, that while the government has the power to accuse an individual of
wrongdoing, a jury ultimately must be available to decide whether such allegations
are warranted. This buffer between the accused and a prosecutor hell-bent on
securing a conviction serves as a “barrier[] . . . against the approaches of arbitrary
power.”24 In short, the right to a trial by jury is an essential element of justice in
America.25
While the jury is an essential component of a justice system devised by men
who harbored a “profound mistrust of government,”26 it alone was not seen as
providing sufficient protection to the individual in the criminal justice arena.
Another critical safeguard was the separation of powers doctrine. This doctrine
carved out a critical role in our criminal justice system for the judicial branch. The
fundamental role of an independent judiciary to our system of justice is reflected in
our devotion to separation of powers and preserved in the text of our
Constitution.27 At “the heart of our constitutional scheme, [separation of powers
doctrine] enables the judiciary to perform this role fearlessly, effectively, and
independently.”28
The Framers “recognized that ‘the accumulation of all powers, legislative,
executive, and judiciary, in the same hands . . . may justly be pronounced the very
22
As the Court articulated in Duncan:
Among the resolutions adopted by the First Congress of the American Colonies (the
Stamp Act Congress) on October 19, 1765—resolutions deemed by their authors to state
‘the most essential rights and liberties of the colonists’—was the declaration: ‘That trial
by jury is the inherent and invaluable right of every British subject in these colonies.’
(citations omitted)
Duncan, 391 U.S. at 152.
23
U.S. CONST. art. III, § 2 provides that: “The trial of all crimes except in cases of
impeachment shall be by jury . . . .” The Sixth Amendment provides: “In all criminal prosecutions,
the accused shall enjoy the right to a speedy public trial, by an impartial jury of the State and district
wherein the crime shall have been committed.” U.S. CONST. amend. VI.
24
Duncan, 391 U.S. at 154 (citing Thompson v. State of Utah, 170 U.S. 343, 349–50 (1898)).
25
See Williams v. Florida, 399 U.S. 78, 100 (1970) (“the essential feature of a jury obviously
lies in the interposition between the accused and his accuser of the commonsense judgment of a
group of laymen, and in the community participation and shared responsibility that results from that
group’s determination of guilt or innocence.”).
26
Hans H. Grong, Toward a Robust Separation of Powers: Recapturing the Judiciary’s Role
at Sentencing, 92 MINN. L. REV. 1584, 1600 (2008).
27
Burkeley N. Riggs & Tamera D. Westerberg, Judicial Independence: An Historical
Perspective the Independence of Judges Is . . . Requisite to Guard the Constitution and the Rights of
Individuals . . . ., 74 DENV. U. L. REV. 337, 338 (1997) (“Article III of the United States Constitution
preserves the independence of judges in their decision making process.”).
28
Irving R. Kaufman, The Essence of Judicial Independence, 80 COLUM. L. REV. 671, 671
(1980).
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definition of tyranny.’”29 Separation of powers was meant to prevent the
accumulation of power before it occurred.30 “The framers recognized that the
criminal process is particularly ripe for abuses and carefully crafted a system to
minimize that possibility.”31 Within constitutional limits, the legislative branch
has the authority to define criminal conduct. The executive branch, through its
prosecuting agents, maintains the discretion to charge an individual criminally.
The jury’s role is to adjudicate guilt. “The judge’s role is to sentence individuals
who have been convicted by a jury based on his discretion and experience.”32 This
thoughtful balance helps to ensure that no branch of government is able to “subvert
popular sovereignty and individual liberty.”33
Each of these protections—the right to counsel, the right to trial by jury, and
an independent judge responsible for resolving legal disputes and determining
punishment—is an essential component of America’s justice system. Each makes
it harder for the government to deprive the individual of his or her liberty. Ours is
a system in which justice is determined by how faithful we are to this process, so
important to our constitutional democracy.
Our Founding Fathers saw the trial process as the vehicle through which we
determine whether the accused is guilty of the alleged crime and, if so, the
appropriate punishment.34 The prosecutor decides whether to charge an individual
and, if so, with what crime(s). In carrying out this role, the ideal prosecutor serves
as a minister of justice,35 striving to achieve fair results, and taking into account all
circumstances. Once accused, justice demands that the individual be provided
counsel with the experience, training, and resources necessary to ensure that all of
the individual’s rights are protected during the course of the prosecution.
Individual liberty is further protected by having both sides present their case to a
jury of the accused’s peers to determine whether the government has sufficiently
proven its case. And finally, if convicted, the accused is entitled to a neutral judge
to determine the appropriate punishment. Each of these players represents an
essential component to our system of justice: a prosecutor motivated to pursue
29
Grong, supra note 26, at 1600 (citing THE FEDERALIST NO. 47 at 307–08 (James Madison)
(Robert Scigliano ed., 2000)).
30
Id. at 1600–01 (citing THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 121 (William
Peden ed., University of North Carolina Press 1982)).
31
Id. (citation omitted).
32
Id. at 1603 (citation omitted).
33
Id. (citation omitted).
34
Susan Haack, Of Truth, In Science and In Law, 73 BROOK. L. REV. 985, 985–86 (2008).
[A] trial is better described as a late stage of a process of determining a defendant’s guilt
or liability: the stage at which, under the legal guidance of the court, advocates for each
side present evidence in the light most favorable to their case, and the finder of fact sifts
through it and assesses whether it establishes guilt or liability to the required degree of
proof.
Id.
35
See Henhouse, supra note 3, at 520–23.
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justice, defense counsel faithful to his or her duty to the accused, a jury of the
accused’s peers to determine whether the government can in fact prove the
allegations, and an unbiased judge who decides on the appropriate punishment if
the individual is convicted. Only by ensuring all rights are realized and that the
power to decide the individual’s fate is sufficiently dispersed throughout the
process, can justice consistent with our constitutional ideals be achieved.
Unfortunately, we have strayed far from our fidelity to these concepts. Our
criminal justice system has gravitated to a state that would make the drafters of our
Constitution shudder. Rather than a system in which criminal justice professionals
are guided by those values that define American justice, ours more closely
resembles an assembly line through which people are processed with little
attention paid to those protections embodied in our Constitution.
Our criminal justice system suffers from a case of gigantism. We have
experienced a steady increase in rates of arrest.36 Prosecutors, succumbing to
public pressure to be “tough on crime,” charge far more cases than the system is
equipped to handle.37 Judges, pressured to value efficiency over justice, have
become adept at moving cases through their dockets quickly.38 Defense counsel
who are overwhelmed and under-resourced, succumb to the pressure to help
process their clients through the system.39 And, predictably, incarceration rates
have steadily increased.40 Yet, the resources necessary to ensure that this critical
work is being done consistent with justice have not kept pace.41 All across the
36
Surell Brady, Arrests Without Prosecution and the Fourth Amendment, 59 MD. L. REV. 1,
20–21 (2000) (“The state arrest laws have at least three immediate consequences. . . . [one being] the
blanket authority of police officers to conduct arrests . . . undoubtedly result[ing] in far more arrests .
. . .”).
37
See Henhouse, supra note 3, at 538–39 (discussing caseloads of prosecutors); see also
Brady, supra note 36, at 49 (“One likely result [of continuation of or increases in arrest rates that
grossly outpace the allocated criminal justice resources] is an arithmetical impossibility to prosecute
the majority of cases brought into the system by arrests.”).
38
Albert W. Alschuler, Courtroom Misconduct By Prosecutors and Trial Judges, 50 TEX. L.
REV. 629, 679 (1972) (“Many trial judges seem to have become as preoccupied with ‘moving cases’
as traffic police are with moving vehicles.”).
39
Shaky Ground, supra note 16, at 166.
40
Matthew B. Kugler et al., Differences in Punitiveness Across Three Cultures: A Test of
American Exceptionalism in Justice Attitudes, 103 J. CRIM. L. & CRIMINOLOGY 1071, 1073–74 (2013)
(“The past fifty years have seen a rise in concern about crime in the United States and, concurrently,
in the national incarceration rate. . . . The United States now has the highest incarceration rate in the
world, [and] assigns more long-duration prison sentences than do other countries . . . .”).
41
See Adam M. Gershowitz & Laura R. Killinger, The State (Never) Rests: How Excessive
Prosecutorial Caseloads Harm Criminal Defendants, 105 NW. U. L. REV. 261, 287 (2011)
(discussing how the expanding criminal justice system impacts prosecutors); see also ABA
S TANDING COMM . ON LEGAL AID & INDIGENT D EFENDANTS , GIDEON ’ S BROKEN P ROMISE:
AMERICA ’S CONTINUING QUEST FOR EQUAL JUSTICE iv (2004) (Overall, our hearings support the
disturbing conclusion that thousands of persons are processed through America’s courts every year either with no
lawyer at al or with a lawyer who does not have the time, resources, or in some cases the inclination to provide
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country our criminal justice system is overwhelmed. But rather than banding
together to resist pressure to administer a system that is not resourced to do so
consistent with justice, America’s criminal justice professionals have adapted to
the status quo. Criminal justice professionals have learned to process growing
caseloads swiftly, and in doing so they have lost sight of our most cherished
values. The result is a criminal justice system in which the fundamental rights
discussed above are disregarded. Over ninety-five percent of those convicted and
subjected to a deprivation of liberty plead guilty, forgoing their right to those
protections so vital to our system of justice.42 The jury trial, which was designed
to be the vehicle through which justice was realized, has become a relic of another
era. The criminal justice system has morphed into a process in which the role of
the jury and the judge are marginalized to the point of near non-existence. Without
sufficient resources to justly handle our criminal caseload, we have become the
world our Founding Fathers so feared; one in which the executive branch can levy
an accusation, ensure a swift conviction, and determine whatever punishment it
wishes, leaving the individual without any meaningful opportunity to contest the
accusations against him.
In a previous article, I posited the following analogy:
[A]ssume the public demanded that 500 miles of public state highway be
built but the legislature only provided enough funding to safely construct
one-fifth of the project. The state could build 100 miles of highway
consistent with safety standards or build 500 miles of highway, none of
which is sound enough to protect its travelers. No responsible
government would opt for the latter. Yet, we do this every day in
America’s criminal justice system . . . .43
As in this highway analogy, every criminal justice professional knows that the
resources do not exist to ensure that every person receives the protections
discussed above. But contrary to what we would predict the response to be in the
highway example, rather than refusing to proceed with cases where there are
insufficient resources to do so consistent with justice, lawyers and judges routinely
work to facilitate the process. And just as would be inevitable should drivers be
left to rely on structurally deficient highways, there is an enormous human toll
from our decision to proceed with a structurally deficient criminal justice system.44
effective
representation.),
available
at
http://www.americanbar.org/content/dam/aba/administrative
/legal_aid_indigent_defendants/ls_sclaid_def_bp_right_to_counsel_in_criminal_proceedings.authcheckdam.pdf.
42
STUNTZ, supra note 8, at 7. See also Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (where
Justice Kennedy acknowledged that “ours ‘is for the most part a system of pleas, not a system of
trials . . . .’”).
43
Henhouse, supra note 3, at 555.
44
MARK MAUER & MEDA CHESNEY-LIND, Introduction, in INVISIBLE PUNISHMENT: THE
COLLATERAL CONSEQUENCES OF MASS IMPRISONMENT 1, 5 (Mark Mauer & Meda Chesney-Lind eds.,
2002) (quoting A.B.A. Task Force on Collateral Sanctions, Introduction to Proposed Standards on
476
OHIO STATE JOURNAL OF CRIMINAL LAW
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The criminal justice environment I describe led journalist and lawyer, Amy
Bach, to write Ordinary Injustice: How America Holds Court, a book that
examines how those responsible for ensuring that justice is done have come to
accept an unjust system.45 As these professionals toil in the criminal justice system
every day, they slowly lose sight of how far we have fallen from achieving justice.
They come to accept the injustice as ordinary. Perhaps Bach’s thesis is best
summed up by her following observation: “Ordinary injustice results when a
community of legal professionals becomes so accustomed to a pattern of lapses
that they can no longer see their role in them.”46
I have joined many authors in writing about the embarrassingly low standard
of justice that we have come to accept for the most vulnerable among us.47 That
those professionals charged with ensuring that we live up to our constitutional
ideals in our criminal justice system have abdicated their responsibilities in this
regard is obvious, and I will not spend much time in this article proving this point.
Instead, I turn my attention to the question, “how does a group of people
presumably interested in justice come to accept their role in such an unjust
system?” For only by understanding how this happens can we begin to discuss
how to address this problem.
III. ORDINARY INJUSTICE:
WHEN THE PEOPLE DRIVING A SYSTEM LOSE SIGHT OF ITS GOALS
The current dysfunction of our criminal justice system is explained by the
concept of organizational culture and how it shapes those who operate within it.
Organizational culture is a phenomenon studied by business leaders, and its
understanding is considered by those in the business community as essential to
leading successful companies. But culture is no less critical in shaping our
criminal justice system.48 Organizational development theorists define culture as
Collateral Sanctions and Administrative Disqualification of Convicted Persons (Jan. 18, 2002)
(unpublished draft) (on file with author).
45
AMY BACH, ORDINARY INJUSTICE: HOW AMERICA HOLDS COURT (2009).
46
Id. at 2.
47
For a discussion, see Shaky Ground, supra note 16; Henhouse, supra note 3; Stephen B.
Bright & Sia M. Sanneh, Fifty Years of Defiance and Resistance After Gideon v. Wainwright, 122
YALE L.J. 2150 (2013); David Cole, Gideon v. Wainwright and Strickland v. Washington: Broken
Promises, in CRIMINAL PROCEDURE STORIES 101 (Carol S. Steiker ed., 2006).
48
See generally Jonathan A. Rapping, Directing the Winds of Change: Using Organizational
Culture to Reform Indigent Defense, 9 LOY. J. PUB. INT. L. 177 (2008) [hereinafter Winds of Change]
(discussing how the principles of organizational culture apply to indigent defense); see Shaky
Ground, supra note 16; Jonathan A. Rapping, National Crisis, National Neglect: Realizing Justice
Through Transformative Change, 13 U. PA. J.L. & SOC. CHANGE 331 (2010) [hereinafter National
Crisis] (building on Winds of Change to introduce a model designed to begin the reformation of
indigent defense; arguing that there is an obligation on the part of the federal government to
transform a criminal justice culture inconsistent with our constitutional mandate); Henhouse, supra
note 3 (examining the role of culture in shaping the actions of the American prosecutor).
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“[that] set of basic tacit assumptions about how the world is and ought to be that a
group of people share and that determines their perceptions, thoughts, feelings, and
to some degree, their overt behavior.”49 These assumptions, which might also be
thought of as attitudes or mindsets, inform a worldview that is so taken for granted
that when asked why one holds it, she might respond, “that’s just how things are
done around here.”50
The assumptions that influence the members of the organization are a
reflection of the organizational values.51 When one becomes a member of an
organization, his or her outlook and actions are shaped by the value set that defines
the organization. The pressure to adapt to the systemic values can be subtle but it
eventually defines the perceptions of those who remain in the organization. It is
ultimately this set of values that defines the assumptions of every member of the
organization.
By way of analogy, think of an organization as a river and the organizational
culture as the strong current directing the flow of the water. An individual who
wishes to go in a different direction may swim against the current. He or she may
even resist the current temporarily. But eventually, the swimmer will tire and
either have to get out of the water or become resigned to going with the current.
Similarly, when a person joins an organization, He or she may come in with a
different value set. But over time, if He or she remains in the organization, their
value system will adapt to that of the entity.
Similarly, the criminal justice system is an organization shaped by a value
system that defines the assumptions of those who work in it. However, the values
that define today’s American criminal justice system are a far cry from those
envisioned by our Founding Fathers.
At every level, professionals responsible for administering our criminal
justice system have abandoned our guiding value system and embraced a set of
assumptions that threatens our democracy. Politicians who make important
criminal justice policy decisions too often pursue a strategy of demonizing
minority populations and the lawyers who represent them because they perceive it
as providing short-term political success that trumps any commitment to
preserving a justice system that protects the individual and cherishes the right to
counsel. Judges consistently focus on strategies to process high volumes of cases
through the court system over ensuring that individuals receive justice in each
case. Prosecutors routinely prioritize the assurance of quick and certain
convictions over the respect for process. And, public defenders frequently
accommodate the efficient processing of cases thereby depriving their clients the
representation to which they are entitled.
49
Edgar H. Schein, Three Cultures of Management: The Key to Organizational Learning,
MIT SLOAN MGMT. REV., 9, 11 (1996).
50
See, e.g., Winds of Change, supra note 48.
51
See id., at 202–04.
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A. Politicians
Gideon was decided in 1963, a time in our nation’s history when we were
struggling to ensure that civil rights were equally afforded to everyone. Civil
rights activists spearheaded legislative and legal victories that guaranteed equal
access in a variety of arenas including voting, commerce, and education. Nowhere
were the consequences of these abuses more severe than in the criminal justice
arena. Designed to ensure equal access to justice in our nation’s criminal courts,
Gideon was certainly a critical civil rights victory. But, the nation also
experienced growing pains associated with these civil rights victories, and, as with
all change, people were divided over the best course of action. As unrest over civil
rights led to heightened racial tension, Southern politicians used civil unrest to gain
political advantage with working class, white voters. These politicians began a
campaign that divided the population along racial lines.52 Branding blacks as unAmerican, criminal, and self-destructive, the process of demonizing the black
community was used to galvanize white support. Politicians sought to change the
narrative of the black American from that of a victim of unjust government
policies worthy of protection, to that of a threat to our wholesome, peaceful way of
life. Stirring public fear of the black community, and promising the public
protection from it, turned out to be an effective political strategy that helped launch
a climate of fear that took hold and spread beyond the South.
For example, in California, then-governor Ronald Reagan used raciallycharged rhetoric to rally his white voting base,53 and President Nixon, targeting
drug use in poor communities of color, ushered in the War on Drugs by labeling
illegal narcotics as “public enemy number one.”54 As crack cocaine became
popular in the 1980s, and the narrative of violence was built around it, the War on
Drugs became a driving influence on America’s perception of crime. 55 With the
help of the media that promoted the image of the inner-city criminal as a threat to
our social fabric, the criminal defendant morphed from an underdog individual
worthy of protection into a menacing force in otherwise lawful communities. 56
The image of the accused became that of a demonized outsider that society was
52
See Henhouse, supra note 3, at 529–32.
Henhouse, supra note 3, at 530, citing STUNTZ, supra note 8, AT 237 (illustrating this by
citing Reagan’s description of city streets as “jungle paths after dark”).
54
Richard Nixon, Remarks About an Intensified Program for Drug Abuse Prevention and
Control, (June 17, 1971) (transcript available at http://www.presidency.ucsb.edu/ws/?pid=3047).
55
For a comprehensive discussion of the War on Drugs and how it has influenced criminal
justice in America, see MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE
AGE OF COLORBLINDNESS (2010).
56
See Craig Haney, Politicizing Crime and Punishment: Redefining “Justice” to Fight the
“War on Prisoners”, 114 W. VA. L. REV. 373, 407 (2012); see also ELAYNE RAPPING, LAW AND
JUSTICE AS SEEN ON TV (2003) (identifying a shift in “TV series about crime and justice” in which the
“defense-attorney hero” has slowly been replaced by heroic policemen and D.A.s).
53
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told it must fear. As the media fueled the image of the defendant as a demon,
politicians found they could gain public support by promising protection from the
menace. It was a climate in which anyone running for office had to ensure that he
or she was committed to “locking up the bad guys.” It shaped political strategies
of politicians in both major parties, illustrated by the fact that both George H.W.
Bush57 and Bill Clinton58 used tough-on-crime posturing to win primary elections.
These strategies continue today as systemic values that undermine our
foundational criminal justice ideals drive our political leaders.59 As several
politicians have recently learned, fighting to uphold the right to counsel, and other
critical constitutional protections, can be harmful to one’s political career. Earlier
this year, Debo Adegbile’s nomination to head the Department of Justice’s Civil
Rights Division was blocked by the Senate because of his advocacy—which was
his job as defense counsel—on behalf of Mumia Abu Jamal who was convicted of
killing a police officer in Pennsylvania.60 Similarly, the Republican Governors
Association ran an ad attacking South Carolina Democratic gubernatorial
candidate Vincent Sheehan for his work as a criminal defense lawyer. The ad
accuses Sheehan of “protect[ing] criminals” and “ma[king] money off criminals.”61
And on the national stage, anticipating her 2016 run for president, critics attacked
Hillary Clinton for her representation of a man accused of rape in 1975.62 With
57
Bush’s notorious use of Willie Horton, the furloughed Massachusetts inmate who raped and
murdered a woman in her home, to defeat Michael Dukakis in the 1988 presidential election is one of
the most infamous examples of this strategy. See STUNTZ, supra note 8, at 240; ALEXANDER, supra
note 55, at 53.
58
Then-Governor Bill Clinton made the decision, during the 1992 Democratic primaries, to
go back to Arkansas and oversee the execution of a mentally disabled black man named Ricky Ray
Rector. See STUNTZ, supra note 8, at 240. Rector had so little understanding of what was happening
to him, that he requested that he be allowed to save his dessert until a later time, not understanding
that there would not be another opportunity to eat. See ALEXANDER, supra note 55, at 55.
59
In fact, the “otherizing” of poor people of color has fueled policies that led to the
militarization of police forces as politicians persuade the public that society is at war with certain
communities. See ALEXANDER, supra note 55, at 5. As I write this article, we are witnessing the
troubling consequences of such divisive politics on display in Ferguson, Missouri, as heavily
militarized police forces treat citizens as though they are our enemies. See Rand Paul, Rand Paul:
We Must Demilitarize the Police, TIME (Aug. 14, 2014), http://time.com/3111474/rand-paulferguson-police/.
60
See Ruth Marcus, Ruth Marcus: Blocking the Nomination of Debo Adegbile is a ‘Travesty’
in the Senate, WASH. POST, (Mar. 7, 2014), http://www.washingtonpost.com/opinions/ruth-marcusblocking-the-nomination-of-debo-adegbile-is-a-travesty-in-the-senate/2014/03/07/ae718948-a63211e3-8466-d34c451760b9_story.html.
61
Ryan J. Rilley, GOP Lawyers Keep Silent on Republican Governors’ Attack Against the Legal
Profession, HUFF. POST (Apr. 23, 2014, 7:59 PM), http://www.huffingtonpost.com/2014/04/23/republicangovernors-association-lawyers_n_5200254.html.
62
See Melinda Henneberger, Conservatives Are Making Hay out of Hillary Clinton’s Defense of an
Accused Rapist, WASH. POST (June 16, 2014), http://www.washingtonpost.com/politics/conservatives-aremaking-hay-out-of-hillary-clintons-defense-of-an-accused-rapist/2014/06/16/7d087efa-f576-11e3-a606946fd632f9f1_story.html.
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seemingly certain future political ambitions, rather than unabashedly reminding her
attackers of the noble and indispensable role that defense lawyers play in our
democracy, Clinton tempered her defense of her role by making clear that before
she undertook the representation, she unsuccessfully asked to be relieved of that
responsibility.63
Clinton’s lukewarm defense of her representation of her client is in stark
contrast to the sentiments expressed by John Adams after he volunteered to defend
British soldiers accused of what became known as the Boston Massacre. It was
1770, and there was no less popular case at the time. Adams undertook the
representation despite the threat it posed to his political career.64 Rather than
apologizing for his role, Adams called his defense of these soldiers “one of the best
pieces of service I ever rendered my country.”65 Sadly, today there exist powerful
pressures for politicians to abandon the principles that shaped Adams’ ideals
nearly two hundred and fifty years ago. Appearing tough on crime has trumped
the defense of our foundational values. But this posturing came at a great cost.
We have lost sight of the humanity of the people accused of crimes, and, in doing
so, we have lost respect for the process our Founding Fathers put in place to
protect liberty.66
B. Judges
Judges also contribute to a culture that promotes values inconsistent with our
founding principles, as they are frequently pressured to prioritize efficiency over
63
See Amy Chozick, Clinton Defends Her Handling of a Rape Case in 1975, N.Y. TIMES (July 7, 2014),
http://mobile.nytimes.com/2014/07/08/us/08clinton.html?partner=rss&emc=rss&_r=3&referrer.
64
See John Adams and the Boston Massacre, AMERICAN CIVIL LIBERTIES UNION (May 8,
2008), https://www.aclu.org/national-security/john-adams-and-boston-massacre.
65
Robert Mann, The Crime of Our Criminal Justice System: Robert Mann, THE TIMES-PICAYUNE (July
12, 2014), http://www.nola.com/opinions/index.ssf/2014/07/the_crime_of_our_criminal_just.html.
66
In 2004, I moved to Georgia to join the effort to usher in its new, statewide public defender
system. While this effort appeared promising initially, politicians hostile to funding justice soon
began cutting necessary funding from the budget. One young public defender wrote a letter to the
Atlanta Journal Constitution explaining that she handled 900 cases in the last thirteen months, leaving
her only three hours per client if she took no vacation and worked fifty hours per week. See MariePierre Py, Public Defender System Fails Georgians and Their Lawyers, ATLANTA J.-CONST., Mar. 30,
2009, at A6. As this young defender, and others like her, decided to leave public defense in Georgia,
some state politicians supported further cuts to the indigent defense budget. For example, Senator
Preston Smith, Chairman of both the Senate Judiciary Committee and the Legislative Oversight
Committee for the Georgia Public Defender Standards Council, the organization tasked with
administering the public defender system, wrote a letter to the Atlanta Journal-Constitution accusing
indigent defense advocates who rallied against the status quo of demanding “a Lexus-level defense at
taxpayer expense.” He also accused indigent defense supporters of being “zealots” and “ideologues,”
while insisting that poor people in Georgia were receiving “[constitutionally] adequate”
representation. He suggested that advocates who demanded a greater commitment to public defense
were unreasonable. See Preston W. Smith, Should Indigent Defense Oversight be Changed? Pro:
Zealots Want Only More of Your Money, ATLANTA J.-CONST., Feb. 19, 2009, at A14.
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process and to not appear to be “coddling” criminals. Recently, more than a dozen
of the best defense lawyers in Houston, Texas protested against a judge who was
“coercing defendants to either waive their right to a lawyer or enter a plea of guilty
without their lawyer being present.”67 I talked to one Houston lawyer who
described being in court when the judge brought out eight unrepresented, accused
men at once and got them all to plead guilty without providing them lawyers.68
This “meet ‘em and plead ‘em” process of disposing of cases quickly is not new to
Houston.69 In fact it is a common practice in many jurisdictions for judges who
want to move cases quickly or save money on paying lawyers.70 This practice
demonstrates that judges, too, are shaped by influences that are inconsistent with
our notion of justice.
That many judges prioritize the efficient processing of cases over justice is
demonstrated by the actions of Ohio Municipal Court Judge John Plough who felt
justified in ordering public defender Brian Jones to try a case to which Jones was
appointed the day before.71 When Judge Plough ordered the trial to proceed, Jones
requested more time, explaining that he had only twenty minutes to meet with the
client to date. The judge denied the lawyer’s request for a continuance, holding
him in contempt of court when he refused to proceed.72
The lack of respect for taking the time to ensure everyone is represented by
capable counsel is further evidenced by a couple of letters to the editor written by
Georgia trial judges addressing a funding crisis in the state’s then newly-formed
public defender system. In one letter, clearly unconcerned about the quality of
representation, a senior judge in Georgia, who is also a former president of the
District Attorney’s Association of Georgia and the Council of the Superior Court
Judges of Georgia, suggested that the state require all civil lawyers, regardless of
their lack of experience handling criminal cases, to handle a certain number of
criminal cases free of charge.73 Another Georgia judge suggested we go back to
offering the “many eager and some starving” local lawyers $50 per case, regardless
67
Brian Rogers, Defense attorneys protest Houston judge’s procedures, Defense attorneys
say misdemeanor jurist’s handling of arraignments is ‘unethical,’ ‘unconstitutional,’ ‘illegal,’
HOUSTON CHRON. (June 27, 2014, 8:08 PM), http://www.houstonchronicle.com/news/houstontexas/houston/article/Defense-attorneys-protest-Houston-judge-s-5584669.php#/0.
68
Interview with Jason Sosa, Attorney, The Sosa Law Firm, in Houston, Tex. (Aug. 5, 2014).
69
Robb Fickman, Judges Must Act to End Jail Overflow, HOUSTON CHRONICLE (Aug. 9,
2009), http://www.chron.com/opinion/outlook/article/Judges-must-act-to-end-jail-overflow1747232.
php.
70
Stephen B. Bright, The Right to Counsel in Death Penalty and Other Criminal Cases:
Neglect of the Most Fundamental Right and What We Should Do About It, 11 J. L. SOC’Y 1, 16–17
(2010).
71
State v. Jones, 2008-Ohio-6994, at ¶ 4.
72
The Court of Appeals reversed the contempt conviction, noting that the judge “improperly
placed an administrative objective of controlling the court’s docket above its supervisory imperative
of facilitating effective, prepared representation and a fair trial.” Id. at ¶ 32.
73
See Dan Winn, Sharing the Load, DAILY REPORT, Feb. 16, 2010, at 4.
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of the time they invest.74 While he never addressed the perverse incentive this
creates for lawyers to ignore client interests, he did tout the value of the good
relationships local lawyers have with judges and prosecutors. These are just
examples of how a culture that responds to systemic pressures inconsistent with
justice can shape the judges who are responsible for overseeing court
proceedings.75
For the judge who chooses to respect our constitutional protections, his career
can be placed in jeopardy, as Judge Harold Baer learned when he excluded
evidence in a trial after finding the police violated the Fourth Amendment. Judge
Baer suppressed evidence of drugs and a confession after finding that the police
lacked the requisite suspicion to stop and search Carol Bayless’s car.76 The
decision created a public firestorm with then “Senate Majority Leader and
Republican Presidential candidate Robert Dole criticiz[ing] then President Clinton
for appointing ‘liberal judges who bend the laws to let drug dealers go free’ and
call[ing] for Baer to be impeached.” Clinton responded by criticizing Baer’s ruling
and announcing his regret for appointing Baer to the bench.77 Less than three
months after his initial ruling, Judge Baer apparently succumbed to pressure and
reversed his ruling.78
As a result, many judges simply lose sight of our foundational ideals as other
values become the primary drivers in their decision making. Despite the fact that
the presumption of innocence is a bedrock principle of our democracy,79 a recent
article featured a judge in Kentucky who clearly presumes the guilt of many of the
74
Andrew A. Mickle, Is the Process Choking the PD System; Forget the Red Tape: State
Should Pay Attention to Funding, but Leave Control up to Local Jurisdictions, DAILY R EPORT (Apr.
11,
2008),
http://www.dailyreportonline.com/id=1202552348968/Is-the-process-choking-PDsystem?slreturn=20141130182605.
75
Recently, Timothy Young, Director, Office of the Ohio Public Defender, shared another
example of how judges can come to prioritize efficiency over justice, and become hostile to values
that may interfere with the expeditious processing of cases, on the website for the National
Association of Public Defense. In a post titled The Dark Side, he describes an encounter with a judge
who referred to public defense as the “dark side” and complained that “his money” was being wasted
by appointing poor people lawyers. See Timothy Young, The Dark Side?, NATIONAL ASSOCIATION
FOR PUBLIC DEFENSE (Sept. 10, 2014), http://www.publicdefenders.us/?q=node/526.
76
U.S. v. Bayless, 913 F. Supp. 232 (S.D.N.Y. 1996).
77
This anecdote serves as further evidence of the pressure placed on politicians at the highest
levels of government to act with hostility towards unpopular ideals consistent with justice. See New
York Federal Judge Reverses Decision in Controversial Drug Case; Clinton, Dole Had Threatened
to Ask for Resignation, Impeachment, NATIONAL DRUG STRATEGY NETWORK, (Apr. 1996),
http://www.ndsn.org/april96/bayless.html.
78
Given the political pressure placed on President Clinton from the highest ranking members
of Congress, and his response criticizing Judge Baer, this anecdote also further illustrates the point
made above regarding those values that drive politicians that are inconsistent with American
principles of justice. Id.
79
Mitchell J. Frank & Dawn Broschard, The Silent Criminal Defendant and the Presumption
of Innocence: In the Hands of Real Jurors, is Either of Them Safe?, 10 LEWIS & CLARK L. REV. 237,
248 (2006).
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accused who appear before her and makes no attempt to hide her presumption
while presiding.80
Another chilling illustration of this can be found in a telling piece by Andrew
Cohen called The Death of the Presumption of Innocence, in which he describes
how a judge, presiding over the jury selection in a case in which the defendant was
accused of sexually assaulting a child, allowed a juror to be empanelled after she
made clear she would have trouble presuming the accused innocent.81 Few crimes
are more likely to inflame a jury, making it especially critical that a judge
guarantee all of the constitutional protections designed to ensure a fair process are
respected. Yet, this story illustrates how our most essential protections are
routinely disregarded by those charged with ensuring justice is served.
C. Prosecutors
As troubling as it is to learn of a judge who allows a clearly biased juror to sit
in judgment of an accused in such a serious case, it is equally disturbing that the
prosecutor in that case worked so hard to rehabilitate a juror who was explicit
about her inability to judge the case fairly.82 While an impartial jury is at the core
of our system of justice, this is an example of a prosecutor more concerned with
winning than with pursuing justice. This is not an isolated example of a prosecutor
trying to gain advantage by promoting an impartial jury. This unabashed desire to
win at all costs also explains how a federal prosecutor sought to inflame jurors’
racial biases in an attempt to prejudice them against a man accused of a drug
offense. In Calhoun v. United States, the prosecutor, cross-examining an African-
80
Andrew Wolfson, Judge’s Remarks Show She Often Assumes Guilt, THE COURIER-JOURNAL
(Sept. 5, 2014, 1:22 PM), http://www.courier-journal.com/story/news/local/2014/09/05/judge-admitsmaking-inappropriate-comments/15121213/.
81
Andrew Cohen, The Death of the Presumption of Innocence, THE WEEK (Apr. 10, 2014),
http://theweek.com/article/index/259595/the-death-of-the-presumption-of-innocence.
82
As described in the article, the juror eventually says she could “try” to be fair after the
following:
The prosecutor asks a potential juror: “You haven’t heard any evidence. How
would you vote?” The potential juror responds: “I would have to vote guilty.”
Your trial judge pipes up. He's supposed to ensure that you receive a fair trial and
that the jurors who will sit in judgment upon you are neutral, objective, and willing to see
and hear the evidence with an open mind. The judge asks the prospective juror: “Could
you return a verdict of not guilty if the government doesn't prove its case beyond a
reasonable doubt?” The would-be juror responds: “I don't think I would be able to.”
The prosecutor—who wants this juror on the panel because he wants to convict
you—presses on. He asks the juror: “Let's say the victim takes the stand [and] you flatout don't believe her. In fact, you think she's lying. You look at her [and conclude], 'I
don't believe a word coming out of her mouth.’ Are you going to convict this man
anyway?”
The potential juror responds: “That depends. I still feel he was at fault.”
Id. This was sufficient for the judge and obviously a desirable outcome according to the prosecutor.
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American defendant, explicitly sought to use race as evidence of propensity to sell
drugs. To rebut the defendant’s claim that he did not intend to associate himself
with the drug activity of others around him, the prosecutor asked, “You’ve got
African-Americans, you’ve got Hispanics, you’ve got a bag full of money. Does
that tell you—a light bulb doesn’t go off in your head and say, this is a drug
deal?”83
These are merely two of the countless examples of prosecutors whose desire
to accumulate convictions trumps fidelity to all other values. When one
understands the role of the prosecutor in our system of justice, it is obvious that
this practice is inconsistent with our democratic ideals. Unlike the criminal
defense attorney, who is charged with the promotion of the administration of
justice through his or her loyal and zealous representation of the accused, the
prosecutor serves as a “minister of justice,” which demands a broader obligation to
ensure that justice is done.84
The prosecutor has broad discretion, rendering him or her the criminal justice
professional most responsible for directing the administration of justice. 85
Although charged with acting in the interest of justice at all times, the culture of
justice in America pressures prosecutors to develop a “conviction psychology” and
to abandon their commitment to justice in an effort to win at all costs.86 This
mindset can lead prosecutors to work to gain an unfair advantage at trial. Not only
have prosecutors been known to try to improperly influence a jury, as discussed
above, but also to suppress exculpatory evidence, the disclosure of which is
mandated by the Due Process Clause,87 take advantage of incompetent defense
counsel,88 or intimidate defense counsel in an effort to quell zealous advocacy.89
83
Calhoun v. United States, 133 S. Ct. 1136, 1136 (2013) (While Calhoun’s petition was
denied for other reasons, Justice Sotomayor expressed her disgust at the prosecutor for “suggesting
that race should play a role in establishing a defendant’s criminal intent.” She went on to say, “It is
deeply disappointing to see a representative of the United States resort to this base tactic more than a
decade into the 21st century . . . We expect the government to seek justice, not fan the flames of fear
and prejudice . . . I hope to never see a case like this again.”). Id. at 1137–38. See also Snyder v.
Louisiana, 552 U.S. 472 (2008) (where the prosecutor impermissibly struck all African American
jurors and subsequently made references to the O.J. Simpson case in an effort to improperly inflame
the passions of the all-white jury).
84
See Henhouse, supra note 3, at 519–23.
85
For an excellent discussion of prosecutorial discretion and the power of the American
prosecutor see ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR
(2007).
86
See generally Henhouse, supra note 3; see also Kenneth J. Melilli, Prosecutorial
Discretion in an Adversary System, 1992 BYU L. Rev. 669, 686 (1992) [hereinafter Prosecutorial
Discretion].
87
JaneAnne Murray, The Brady Battle, CHAMPION, May 2013, at 72. (citing James S.
Liebman et al., Capital Attrition: Error Rates in Capital Cases, 1973–1995, 78 TEX. L. REV. 1839,
1846, 1850 (2000)).
88
See Henhouse, supra note 3, at 561 (discussing an example of a prosecutor who joked
about taking advantage of a defense lawyer’s incompetence).
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But perhaps more troubling than the prosecutor who seeks to unfairly tilt the
trial playing field in his or her favor, is the practice of using all tools available to
deprive the accused of a trial altogether. As criminal codes have expanded and
penalties are becoming increasingly harsh, prosecutors have new tools to force
defendants to plead guilty rather than exercise their right to a trial.90 By
overcharging counts or charging more serious offenses than the facts will support,
prosecutors are able to increase the likelihood of conviction and the certainty of
lengthy prison terms. As they inflate the cost of going to trial, prosecutors are able
to pressure defendants to plead guilty and waive those protections so necessary to
ensure justice.
And, in case these tools provide insufficient leverage to get defendants to
waive their rights, prosecutors have used the threat of lengthy pretrial detention, by
requesting bonds that poor defendants cannot afford, to further incentivize guilty
pleas.91 Given that eighty percent of people charged with crimes are indigent,92 by
requesting bonds that poor defendants cannot make and tying the accused’s release
to their willingness to plead guilty, prosecutors are able to force defendants to give
up their right to trial.
As prosecutors continue to overwhelm the criminal justice system with their
charging decisions, they take advantage of these tools to ensure those they accuse
cannot afford to demand the rights our Constitution guarantees them. As trials
become rare events and prosecutors more readily control the punishment
associated with a plea, the jury and judge are stripped of their ability to provide a
check against the will of the prosecutor.
D. Defense Counsel
In Gideon, the Supreme Court made clear that it is the defense lawyer that
serves as the engine necessary to ensure justice is done, for through the right to
counsel, all other rights are realized.93 But in a system that has lost respect for the
right to counsel, defense lawyers—and in particular those appointed to represent
the poor—have the passion and zeal beaten out of them as the pressures to process
the accused dominates our criminal justice culture. The result is that many defense
lawyers have adapted to a status quo that prioritizes the efficient processing of
89
Id. at 562 (discussing an example out of Orleans Parish Louisiana where a prosecutor
threatened to charge a defense investigator criminally in an effort to chill constitutionally required
investigation).
90
Id. at 533.
91
Id. at 546.
92
Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National
Crises, 57 HASTINGS L.J. 1031, 1034 (2006) [hereinafter The Right to Counsel in Criminal Cases].
93
See Gideon v. Wainwright, 372 U.S. 335, 344–45 (1963) (recognizing that a layperson will
not be able to take advantage of myriad procedural and substantive safeguards designed to ensure fair
trials without the assistance of counsel).
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cases and abandoned the values that are fundamental to their duty under the Sixth
Amendment.94
Much of my scholarship has addressed the pressures that defenders face to
abandon their obligations to their clients and to give in to a corrupted set of values
that drive our justice system.95 Our courtrooms are filled with defenders like
Robert Surrency, a lawyer we meet in Amy Bach’s Ordinary Injustice who held
the contract to represent indigent defendants in Green County, Georgia for fourteen
years. Although his position was considered part-time, allowing him to maintain a
private practice, Surrency’s annual appointed caseload was twice the
recommended national standard.96 He began his public defender career as a young
lawyer and quickly adapted to the expected standards of practice.
The judges demanded that he process his cases quickly, and he obliged. In
one four-year period he handled 1,493 cases, with 1,479 (more than 99%) resulting
in pleas.97 Some days he would plead dozens of clients in a single court session,
and he had little time to get the details necessary to negotiate on their behalf.98 He
did not request investigative or expert services, “claim[ing] not to need these
resources, anyway, because most of his cases were ‘pretty open and shut.’”99 In
addition [h]e didn’t want to get people riled up about spending the county’s
money.”100 When clients complained about the insufficient time Surrency spent
talking to them, he chalked it up to “their [bottomless] need for attention,” adding,
“‘You have to draw the line somewhere.’”101 Surrency considered his highvolume, plea-bargain practice “‘a uniquely productive way to do business,’” and
believed that he “achieved good results” for his clients.102 Bach concludes that
“[u]nder the weight of too many clients to represent, he seemed to have lost the
ability both to decide which cases required attention and to care one way or the
other.”103
Almost certainly, Surrency did not become a public defender because he
wanted to process hundreds of clients each year. But the system shaped him. As
young lawyers learn to conform to the values of the system they can develop into
leaders who are equally apathetic towards the principles that underlie our justice
system. Consider Guy Wilkerson, the president of the Tennessee District Public
Defenders Conference, elected to represent public defenders statewide. Wilkerson
was invited to testify before the Tennessee House Ways and Means Committee and
94
Shaky Ground, supra note 16, at 173.
See The Right to Counsel in Criminal Cases, supra note 92; Winds of Change, supra note
48; Shaky Ground, supra note 16.
96
ORDINARY INJUSTICE, supra note 45, at 12.
97
Id. at 14.
98
Id. at 14–15.
99
Id. at 15.
100
Id.
101
Id. at 17.
102
Id. at 13.
103
Id. at 15.
95
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given the opportunity to discuss public defense resources.104 Focusing on his own
district, he responded as follows:
You all probably could get up here and you’re always asking for more
and more; but in my district, . . . I think I have enough assistants to cover
the caseload that I have. I have a five county district. I have an attorney
for each county. What I have done is I converted one of my investigators
into an attorney position so I could cover all the courts. And uh, then I
have one investigator for my five county district. And our caseload, we
do about four thousand cases a year. I have been blessed with retention
of my staff which means I have experienced attorneys, which really helps
a lot in being able to process cases. . . . They get good quality
representation. Of course I’m bragging I guess. For one district in the
state, . . . I think you have supplied what I need . . . .105
The sheer volume of cases that the conference president’s lawyers handle—
eight hundred per year each—and his attitude about the acceptability of this
caseload suggest a district in which every client likely gets representation that falls
far short of what justice demands.
Just as Surrency certainly did not decide to become a public defender to
process individual clients, Wilkerson surely did not begin his career believing any
lawyer could adequately handle 800 cases per year. They, like so many defenders,
have been shaped by a culture that is driven by a value set inconsistent with justice.
It is the same culture that drives politicians to demonize people accused of crimes
and campaign in favor of policies that deprive them access to justice. It is the
same culture that pressures judges to abandon their obligation to justice and to
focus on the efficient processing of cases. It is the same culture that drives
prosecutors to charge more cases than the system is resourced to handle and
trample on principles of justice in an effort to coerce defendants into abandoning
their rights and pleading guilty. All of these professionals play a role in promoting
a criminal justice system that is antithetical to the values that define our
democracy.
IV. THE ROLE OF LAW SCHOOLS IN ADDRESSING OUR CRIMINAL JUSTICE CRISIS
Prosecutors, defense lawyers, and judges learned to operate within the
criminal justice system by internalizing the culture that shapes that system. The
104
Wilkerson is also the district public defender for the Twenty-Fourth Judicial District of
Tennessee.
105
Budget Hearing Before the H. Comm. on Fin., Ways and Means, 108th Gen. Assemb.
(Tenn. Feb. 7, 2013) at 44:15 (statement of Guy Wilkerson, President of the Tennessee District
Public
Defenders
Conference)
(video
available
at
http://www.justicepolicy.org/uploads/justicepolicy/documents/system_overload_final.pdf).
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values that drive them are learned as they participate in the system, and
internalized as they see themselves as being effective as that term is defined by the
prevailing culture—a culture formed by values inconsistent with justice. As
professionals mature in the system, these values subtly shape their views and
assumptions, and before long they are perpetuating the existing culture. Because
culture is a powerful force that influences everyone in the system, the only way to
reform the system is to change the culture.106
Changing culture is difficult, but not impossible. Because at its core, culture
is determined by the institutional values that shape the perceptions, thoughts, and
behavior of those who make up the system, the first step is to introduce a new
value set into the organization. As individuals begin to embrace this new value set,
and operate in accordance with it, they will begin to internalize these values. Once
internalized, the values become the assumptions of the professionals in the system.
When enough of the players in the system are guided by the same assumptions,
culture will change.107
Scholars who study leadership distinguish between adaptive challenges and
technical problems.108 Adaptive challenges are those that require the people
charged with tackling them to adapt their thinking to a mindset necessary to
resolve the dilemma. In short, they must change their ways.109 Technical
problems are easier to fix, as the people responsible for addressing them already
have the right mindset and skillset. They address a policy or rule with the tools
they already have. “The most common cause of failure of leadership is produced
by treating adaptive challenges as if they were technical problems.”110
To effect the right kind of change, we must understand that criminal justice
reformers face an “adaptive challenge,” a crisis that requires actors to transform
the way they think about justice. Criminal justice actors must embrace a value
system consistent with our constitutional ideals. We must guard against treating
106
Many criminal justice reformers advocate for policy reform such as doing away with
mandatory minimum sentences, decriminalizing certain behavior, or ending the use of money bonds.
All of these are certainly useful reforms, but until the value set that drives criminal justice
professionals is transformed they will continue to push the system in a direction inconsistent with
justice. The crisis in criminal justice presents an “adaptive challenge” that cannot be rectified with
“technical solutions” such as policy reforms. If we are to realize a transformation consistent with the
values that are at the heart of our constitution we must get criminal justice professionals to adapt to
those values. For an excellent discussion the distinction between adaptive challenges and technical
problems see RONALD A. HEIFETZ & MARTY LINSKY, LEADERSHIP ON THE LINE: STAYING ALIVE
THROUGH THE DANGERS OF LEADING (2002) [hereinafter LEADERSHIP ON THE LINE] (The most
common cause of failure of leadership is produced by treating adaptive challenges as if they were
technical problems.).
107
Winds of Change, supra note 48, at 204–05.
108
For a discussion of the need for leaders to distinguish between adaptive challenges and
technical problems, see LEADERSHIP ON THE LINE, supra note 106, at 13–14.
109
RONALD HEIFETZ, ALEXANDER GRASHOW & MARTY LINSKY, THE PRACTICE OF ADAPTIVE
LEADERSHIP: TOOLS AND TACTICS FOR CHANGING YOUR ORGANIZATION AND WORLD 69 (2009).
110
Id. at 19.
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this crisis as a series of “technical problems” that can be fixed through policies and
rules. The primary problem is not that professionals who want to act consistently
with justice are kept from doing so by rules that inhibit them from doing so—
although some certainly exist.111 While policy reforms can be beneficial, and even
force actors to modify their behavior in the short run, unless the value systems that
drive those who administer justice are modified, they will continue to be driven to
act in ways inconsistent with justice. Ultimately, these actors will find new ways
to promote results consistent with their corrupted value system.
If we are serious about transforming our criminal justice system, it is not
enough to enact individual policy reforms that will alter behavior in the short-run
but leave the values that guide systemic actors unchanged. To realize meaningful
reform, we must set about the difficult task of changing the value set that guides
institutional players so that they will be guided by ideals consistent with justice.
As the community of criminal justice professionals is introduced to a new value
set, adapt to it, internalize it, and act consistently with it, the corrupted culture at
the heart if the criminal justice crisis will begin to transform. And, as I will argue,
the law school itself must be the starting point for this transformation.
At this point, I hope to have established three points: 1) that no metric
provides a better gauge of the degree to which we live up to our most important
democratic ideals than how we administer criminal justice; 2) that our criminal
justice system is currently defined by a set of values that is inconsistent with those
ideals, and 3) that transforming our criminal justice system to function consistently
with those ideals requires that we redefine the value system that guides those most
responsible for its administration. If we agree with these premises, it logically
follows that redefining the value set that guides criminal justice actors is essential
to becoming a nation that lives up to its most fundamental founding principles.
The question then becomes, “what is the most effective way to transform the
values that shape criminal justice in America?” Given that the vast majority of
professionals responsible for shaping how we administer criminal justice in
America are lawyers,112 any effort to infuse the system with values consistent with
our constitutional ideals must involve law schools.
111
While there will certainly be some professionals who would act more consistently with
justice in the absence of rules that constrain them, there are many others guided by a corrupted set of
values.
112
Obviously, this is true of judges, prosecutors, and defense lawyers. But, a high percentage
of politicians have gone through law school as well. See Joe Patrice, The Return of the LawyerPolitician, ABOVE THE LAW (Nov. 21, 2012, 4:11 PM), http://abovethelaw.com/2012/11/return-ofthe-lawyer-politician/. (“Of the [‘new Congressfolks and Senators’] coming to Washington, 43
percent are lawyers, reversing the decline in lawyer politicians.”).
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V. HOW LAW SCHOOLS CAN BUILD AN ARMY OF CHANGE AGENTS
Each year, when I address the incoming class at Atlanta’s John Marshall Law
School, I begin with a quote from an unnamed law student: “The first thing I lost
in law school was the reason that I came.”113 I poll the audience to find out why
they came to law school. Invariably, a large percentage of them use words like
“justice,” “fairness,” and “equality” in their responses. I then predict that by the
end of the first year, many of them will abandon that motivation. My warning is
not a comment about AJMLS—in fact, my colleagues there are as committed to
preparing and inspiring our students to identify meaningful and fulfilling careers as
any faculty I have seen. It is an observation about the way all law schools teach
first-year students. We teach them that the law is appropriately reduced to doctrine
gleaned from black letters on a white page. We rarely ask about the people behind
the cases they will read. The law becomes mechanical, stripped of any human
element. We prepare our lawyers to be rational, and to be wary of any emotional
response. By making our graduates into robotic technical workers, we ensure the
legal profession remains efficient and predictable, at the expense of being
compassionate and humane.
It has long been a concern of many within both the academy and the
profession that law schools fail to adequately prepare graduates for the practice of
law. Ever since Christopher Columbus Langdell, Dean of the Harvard Law
School, developed the “case method” in the late 19th century, law students have
primarily learned law by reading judicial opinions and analyzing how the courts
“interpret and apply the law to a particular set of facts.”114 Through this
methodology, students are taught to focus on how to faithfully apply a structured
process of analysis to arrive at a conclusion, without questioning “why lawyers in a
matter behaved as they did,” “what else they might have done,” or whether the
lawyer’s actions were consistent with the client’s desires.115 They are conditioned
to accept the status quo, “becom[ing] ‘Monday morning quarterbacks,’” who
“critiqu[e] the reasoning of others,” rather than acquiring “the experience of
making decisions under difficult circumstances . . . .”116 For much of the twentieth
century, this method of training lawyers went largely unquestioned.117
113
William P. Quigley, Letter to a Law Student Interested in Social Justice, 1 DEPAUL J. SOC.
JUST. 7, 8 (2007).
114
Steven C. Bennett, When Will Law School Change, 89 NEB. L. REV. 87, 91 (2010).
115
Id.
116
Id. at 92.
117
See generally Donald L. Burnett, Jr., Neither Mess Nor Menace: Legal Education and the
Erudite Apprentice, 18 PROF. LAW. 2 (2008) (demonstrating that while there are examples of law
schools attempting to combine a “graduate school” and “professional school” identity throughout the
twentieth century, widespread concerns about legal education did not arise until the latter half of the
1900s).
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But more recently, concerns about how law schools are preparing America’s
lawyers have grown.118 In the last twenty-five years, there have been three major
studies that examined the effectiveness of American law schools.119 Each of these
studies came to similar conclusions; that while American legal education is
effective at developing students’ analytical ability, they have failed to provide
students with the skill set and value set needed to effectively practice law. 120
Echoing these concerns, numerous legal scholars and professionals have urged law
schools to do a better job of preparing students to apply the lessons they learn in
the field, and to develop a professional identity and purpose that guides their
career.121
Through this discourse, many have begun to embrace the idea that we must
meet the demand to prepare “practice-ready” lawyers. These critics demand that
law schools do a better job at helping graduates develop a skill-set that will enable
them to translate the theory they learn into the practice of law in real-world
settings.122 There is also growing sentiment that law schools need not be agnostic
118
Erwin Chemerinsky, Rethinking Legal Education, 43 HARV. C.R.-C.L. L. REV. 595 (2008)
(discussing how “law schools can do a much better job of training lawyers”); Toni M. Fine,
Reflections on U.S. Law Curricular Reform, 10 GERMAN L.J. 717, 717 (2009) (“explor[ing] the
critiques of U.S. legal education and ongoing curricular changes to the U.S. legal education”); see
also Elie Mystal, Law Grads Feel ‘Practice Ready,’ Employers Seem to Disagree, ABOVE THE LAW
(Aug. 19, 2014, 2:50 PM), http://abovethelaw.com/2014/08/law-grads-feel-practice-ready-employersseem-to-disagree/.
119
AMERICAN BAR ASSOCIATION, TASK FORCE ON LAW SCHOOLS AND THE PROFESSION,, LEGAL
EDUCATION AND PROFESSIONAL DEVELOPMENT—AN EDUCATIONAL CONTINUUM (1992), available at
http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2013_legal_educatio
n_and_professional_development_maccrate_report).authcheckdam.pdf; ROB STUCKEY ET AL., BEST
PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROAD MAP (2007), available at
http://www.cleaweb.org/Resources/Documents/best_practices-full.pdf; WILLIAM M. SULLIVAN ET AL.,
THE CARNEGIE FOUNDATION FOR THE ADVANCEMENT OF TEACHING, EDUCATING LAWYERS:
PREPARATION FOR THE PROFESSION OF LAW (2007).
120
AMERICAN BAR ASSOCIATION, TASK FORCE ON THE FUTURE OF LEGAL EDUCATION, REPORT
AND
RECOMMENDATIONS,
14
(2014),
available
at
http://www.americanbar.org/
content/dam/aba/administrative/professional_responsibility/report_and_recommendations_of_aba_tas
k_force.authcheckdam.pdf (“[I]t is commonly stated that the basic purpose of law schools is to train
lawyers, however, there is no consensus about what this means.”) (emphasis added).
121
Patrick E. Longan, Teaching Professionalism, 60 MERCER L. REV. 659, 659 (2009). “[A]ll
professional schools must train their students in ‘three apprenticeships:’” intellectual, “which
develops the knowledge base and habits of the mind that the profession deems important; equipping
skills and training, which is necessary to “translat[e] the intellectual training into effective action in
practice”; and “inculcat[ing] the student with the values and ideals of the profession.” Id.
122
Drew Coursin, Comment, Acting Like Lawyers, 2010 WIS. L. REV. 1461, 1463–64 (2010)
(“Law students spend too much time learning how to think like lawyers, and not enough time
learning how to apply that thinking. . . . in order to thrive as professionals, law students must acquire
more practical, applicable skills through experiential learning while in law school.”); Keith B.
Norman, Legal Internships: Helping Students Become Practice-Ready, 75 ALA. LAW. 160, 161
(2014) (“The principal purpose of law school is to prepare individuals to provide law-related services.
This elementary fact is often minimized. The profession’s calls for more attention to skills
training . . . have been well taken.”); Michele R. Pistone & John J. Hoeffner, No Path But One: Law
492
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when it comes to promoting values that are core to the profession such as justice
and fairness. Proponents of this view argue that law schools should not produce
“values-neutral” lawyers, but instead should promote in their curricula values
fundamental to the profession.123 Under this view, all lawyers, regardless of their
ultimate career choice, should be guided by a common set of ideals. And some
observers have even embraced the notion that not only should law schools promote
a particular value-set, but that it is appropriate for them to inspire students to
consider social justice careers.124
For law schools that appreciate the need to more effectively teach skills and
values, and to inspire students to embark on social justice careers, no model has
School Survival in an Age of Disruptive Technology, 59 WAYNE L. REV. 193, 223 (2013) (“The
overly academic nature of the training provided by the Langdellian law school was recognized as a
problem almost immediately, became the subject of a law review article in 1917, and then received
considerable attention throughout the 1920s.”) (footnotes omitted).
123
Christopher L. Eisgruber, Can Law Schools Teach Values?, 36 U.S.F. L. REV. 603, 617
(2002) Perhaps law schools can help students develop a sense of professional identity consistent with
the kinds of practice they are likely to have. In theory, at least, law schools might do so by supplying
positive . . . role models; by discussing explicitly what it means to live ethically in the law; by
illuminating the law’s connection to justice and other values; or by introducing students to the
intellectual pleasures that can accompany the analysis of legal problems, both in the classroom and in
practice.”); David Hall, Raising the Bar: A Campaign to Transform the Legal Profession, 22 J.
LEGAL PROF. 7, 9 (1998) (“Law schools must create learning environments where [fundamental
values to the profession] are cultivated and nurtured[;] . . . . There must be a new partnership
between the academy and the profession that nurtures the same values and attempts to find answers to
the critical problems facing this profession.”); Beverly I. Moran, Disappearing Act: The Lack of
Values Training in Legal Education—A Case for Cultural Competency, 38 S.U. L. REV. 1, 24 (2010)
(“[B]oth the MacCrate Report and Educating Lawyers asserts that turning students into lawyers
requires mastering three skill sets: thinking, practice, and ethics. Nevertheless, the law school
world’s response to each report is to emphasize only two skills—cognitive and practical—while
giving less attention to the third skill—values.”).
124
Michael Coper, Law Reform and Legal Education: Uniting Separate Worlds, 39 U. TOL. L.
REV. 233, 233 (2008) (stating that the idea that law reform and legal education should be brought
together “needs to be defended, especially against a diametrically-opposed proposition that the
mission of a modern university is to discover and transmit, neutrally and dispassionately, objective
and value-free knowledge, and not to promote, directly or indirectly, a particular point of view,
program, or ideology.”); Marcy L. Karin & Robin R. Runge, Toward Integrated Law Clinics that
Train Social Change Advocates, 17 CLINICAL L. REV. 563, 569 (2011) (“[W]e believe a mixture of
skills taught and experiences provided to students through [the clinical framework] provides a
compelling model to achieve our mutual goal of training students across the county to be effective
legal advocates that bring needed and thoughtful social change to their communities.”); Jon Mills &
Timothy McLendon, Law Schools as Agents of Change and Justice Reform in the Americas, 20 FLA.
J. INT’L L. 5, 6 (2008) (“There is . . . an obligation for universities, and particularly law schools, to be
involved in society and promote social justice.”); Mae C. Quinn, Teaching Public Citizen Lawyering:
From Aspiration to Inspiration, 8 SEATTLE J. SOC. JUST. 661, 664–65 (2010) (“[T]he only ethical
provision that even begins to address components of public citizen lawyering concepts is [Model
Rules of Professional Conduct] Rule 6.1, entitled ‘Voluntary Pro Bono Publico Service.’ . . . It is
only toward the end of [the rule] that lawyers are told they can meet their pro bono responsibility
through . . . . ‘participation in activities for improving the law, the legal system, or the legal
profession.’”) (footnote omitted).
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been more effective than the clinical model.125 While many schools have been
reluctant to implement clinics, largely due to the cost,126 they have proven to be the
most effective method to provide experiential education to students.127 Many
scholars have written about the benefits of clinical education, and with small
student to teacher ratios, close supervision, and the opportunity to work with actual
clients and real problems, this model clearly has an educational benefit that is
missing from traditional legal teaching.128 My own experience bore this out.
During my third year of law school, I participated in a criminal defense clinic
representing misdemeanants in D.C. Superior Court. Outside of the mentorship
and guidance I received as an intern at the Public Defender Service for the District
of Columbia,129 no other law school experience better prepared me for my work as
a public defender.
But, in retrospect, I recognize a flaw in my clinical experience. I spent a year
learning how to represent three clients really well. With no limit on the amount of
time or resources available to give my clients the representation they deserved, I
honed my craft in an artificial laboratory and learned the way a defense lawyer is
supposed to represent a client. I never learned about all of the challenges that
make this standard of practice impossible for most public defenders. I was never
introduced to the very real pressures defenders face to allocate scarce resources. I
was prepared to practice in a model defender office. And fortunately for me, I
began my career in one of the very few such offices that exist in this country.130
125
Suzanne Valdez Carey, An Essay on the Evolution of Clinical Legal Education and Its
Impact on Student Trial Practice, 51 U. KAN. L. REV. 509, 527 (2003) (“Advocates of clinical legal
education emphasize that low student-faculty ratios and a learning environment in which continuous
critical assessment and feedback is given by faculty members imparts and fosters practical legal skills
and assists in developing a well-rounded lawyer who will continue to learn from his or her own
experiences after graduation from law school.”); Brent E. Newton, Preaching What They Don’t
Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of
Practical Competencies Obstruct Reform in the Legal Academy, 62 S.C. L. REV. 105, 140 (2010)
(“Clinical training involves more than mere skills training; it ‘give[s] students systematic training in
effective techniques for learning law from the experience of practicing law,’ which is vastly superior
to learning from reading appellate cases and then listening to a professor lecture or employ the casedialogue method.”) (footnote omitted).
126
See Erwin Chemerinsky, Why Not Clinical Education?, 16 CLINICAL L. REV. 35, 38 (2009)
(noting the economic advantage to teaching through the casebook method, the author argues that the
primary reason schools have not embraced the clinical model is cost).
127
Id. at 35 (arguing “[t]here is no better way” than clinics to teach students skills and
professional values).
128
Id. at 38.
129
I interned at PDS both of my law school summers and throughout my second and third
years of law school. Therefore, most of my legal education, even while in law school, came from this
experience.
130
I began my career at the Public Defender Service for the District of Columbia (PDS). PDS
is nationally regarded as one of the best public defender agencies in the country. See Barbara A.
Babcock, The Duty to Defend, 114 YALE L.J. 1489, 1493 (2005) (describing PDS as “a model
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But after working in some of the more typical criminal justice environments in the
country, I realize my clinical education had not prepared me to be a public
defender in most American courtrooms. Had I began my career in Georgia,
Louisiana, Mississippi, or any of the terribly broken systems across the country, I
would have been paralyzed. No one taught me how to translate the lessons I
learned to address these challenges. I would have very quickly abandoned these
lessons to learn the shortcuts the system demands defenders take to survive.
I now realize that if law schools are going to live up to their potential to
contribute to the reformation of our criminal justice system, they must do more
than effectively teach skills and professional values. Teaching best practices and
sending students to systems that do not respect those practices will not serve them
well. Assuming law schools were able to effectively prepare graduates to apply
the lessons they learned in law school and to inspire these students to pursue
careers consistent with a sense of justice and fairness in systems where they are
most needed. The theory behind organizational culture teaches that if these young
lawyers practice in systems driven by a culture inconsistent with those values, they
will soon be forced to leave these systems or succumb to the status quo.131 In
short, the law school that accepts the broken system as a given—or never even
considers the health of the system—will not be part of the solution. Being the best
lawyer one can be, but accepting the dysfunction of his or her environment, will
not lead to change. Law schools must prepare students to change the values in
systems in need of reform.132
To summarize, if law schools are to help fix the criminal justice crisis in
America they need to: 1) prepare students with a knowledge base and skill-set to
be excellent criminal lawyers, 2) inspire students to want to pursue careers in
criminal justice, 3) ensure students embrace a justice-based value set, and 4) make
sure students are aware of the systemic challenges to practicing consistent with this
value-set and provide them strategies for resisting pressures to abandon these
values. Law schools must train students to broaden their view of what a lawyer
can do in a broken system.
agency”); see also Richard Delgado, The Current Landscape of Race: Old Targets, New
Opportunities, 104 MICH. L. REV. 1269, 1273 (2006) (describing PDS as “nationally prominent”).
131
See Karen H. Rothenberg, Recalibrating the Moral Compass: Expanding “Thinking Like a
Lawyer” Into “Thinking Like a Leader”, 40 U. TOL. L. REV. 411, 416 (2009) (recognizing the role
law schools play in training students to resist pressure to abandon important lawyering values, the
author says “[T]he current paradigm in legal education is not providing lawyers with the training and
skills necessary to maintain their moral compass over the course of their careers.”) (footnote
omitted).
132
It was this realization that led Gideon’s Promise to begin to invite criminal defense
clinicians to our annual Trainer Development Conference, mentioned below. See infra text
accompanying note 149; Shaky Ground, supra note 16, at 175–80. Originally developed to teach
public defender trainers a model for teaching public defenders to raise the standard of representation
in challenging environments and to withstand pressures to process clients, in 2012 we began inviting
criminal defense clinicians to this conference in the hopes of getting more clinicians to consider how
to inspire and prepare students for careers in challenging environments.
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It is this last piece that is missing from even the most innovative curricula.
And yet, this is the most critical piece if lawyers are to become part of a strategy to
transform culture. To address the challenge facing our criminal justice system,
lawyers must learn to not only be excellent advocates, but must also become
change agents.133
VI. FROM LAW SCHOOL TO PRACTICE:
SEEING HOW OUR CURRICULAR SHORTCOMINGS PLAY OUT IN REALITY
AND CONSIDERING HOW TO EFFECT CHANGE
I spent the first decade of my legal career working in a model public defender
office, before moving to Georgia to begin a career working with public defenders
in broken criminal justice systems. Over the next decade I worked closely with
public defenders in some of the most challenging environments across the Deep
South. It was not until I began this second phase of my career that I came to
understand how ill-prepared our law school graduates are to represent people
accused of crimes. Many had never learned concepts and skills foundational to
criminal defense work. Many had little appreciation for the role of the defender in
promoting justice and how to use a comprehensive tool kit to carry out their duty.
I began to understand that these defenders needed to learn lessons about
representing poor people accused of crimes and possess a set of skills they were
never taught in law school, and to understand how these lessons could be used in
concert to better represent their clients.
But, I also realized that we faced a greater challenge if we were to live up to
the promise of Gideon. It was only after I began to work in the most challenging
environments that I came to appreciate the importance of teaching lawyers a
justice-oriented value set, and supporting them as they struggle to practice
consistently with it. Only then, did I begin to realize the power of a community of
professionals, driven by a common set of values, to transform organizations and
systems in need of reform.
For my first decade of practice as a public defender, I experienced, and took
for granted, a system that respected the right to counsel and afforded poor people
accused of crimes the type of lawyer that they were constitutionally guaranteed.134
Every lawyer began his or her tenure at the Public Defender Service for the District
of Columbia [PDS] with an intensive training program that taught substantive law,
procedure, and skills.135 All of these lessons were taught against the backdrop of a
133
See Rothenberg, supra note 131, at 413 (“In an ideal world, young lawyers would . . . be
more attuned to their own values, and have the moral courage necessary to be leaders and agents for
change in their profession.”).
134
See National Crisis, supra note 48, at 347–48.
135
When I began at PDS, the training program lasted six weeks. Since then it has evolved into
a nine-week training program. All lawyers must go through this training before being appointed a
client.
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strong culture that promoted client-centered values.136 They were reinforced
through continuous training and supervision as each lawyer matured into a
seasoned defender. I spent five years as a supervising attorney and three as the
Training Director, always assuming that the system expected our lawyers to
provide excellent representation.137 Our focus was on providing every client the
best representation possible, not on fighting against pressures to deprive clients the
lawyers they deserved. I was unaware that the system within which I operated was
such an exception, and that in most of the country a respect for the right to counsel
did not exist.
Because I learned so much about how to be a public defender from my time at
PDS,138 I did not see the shortcomings of my legal education. Rather than focusing
on how poorly law school prepared me for my legal career, I took in all I could
about how to be a great public defender from my eleven years of on-the-job
training. Then, in 2004 I was invited to become the first Training Director for the
state of Georgia when it unveiled a statewide public defender system. And in
2006, I joined the effort to rebuild the public defender system in New Orleans in
the wake of Hurricane Katrina, serving as the Director of Training and
Recruitment. Being in on the ground floor of two indigent defense reform efforts
was eye-opening. My first years in the South exposed me to a culture that
accepted an embarrassingly low standard of justice for poor people and expected
public defenders to facilitate that injustice. And I met countless public defenders
who, although well-intentioned, were ill-equipped to defy these expectations.
Their legal training failed them in several fundamental respects.
First, their coursework was often incomplete, as essential courses in criminal
law and procedure are frequently not required,139 and many students do not
recognize their importance prior to graduation. To the extent that relevant courses
are offered, they are often taught in isolation with no attempt to integrate various
criminal law courses into a comprehensive curriculum. As a result, even if a
student were to take criminal law, criminal procedure, and evidence, it would
likely be taught by three distinct teachers who did not coordinate with one another
and who never considered how lessons from the other courses impact what each is
teaching.
Secondly, in addition to probably having missed out on a comprehensive and
integrated curriculum, these lawyers were frequently never taught how the lessons
136
For a discussion of client-centered representation and the values consistent with it, see
Shaky Ground, supra note 16.
137
There was certainly much about the criminal justice system in DC that was unjust, but PDS
had long before my arrival established a high standard of practice that became the accepted norm by
the time I arrived.
138
See Babcock, supra note 130; see Delgado, supra note 130.
139
For example, in many law schools a basic criminal procedure course that covers the Fourth,
Fifth, and Sixth Amendments is not required, and I am unaware of any that requires a course in
criminal procedure that covers topics beyond these.
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they learned actually applied in practice. So a law graduate may have learned the
doctrine behind the Fourth Amendment without ever learning how to raise and
litigate a suppression issue. Or, he or she may have learned about statutory
discovery without having learned how to effectively use discovery to advance the
goal of the particular litigation.140 And because law schools compartmentalize
courses, even when they attempt to teach skills, students are not provided an
opportunity to appreciate how the substantive courses relate to the skills being
taught.141
Third, and most importantly, many of these lawyers were coming out of law
school with a value set that is inconsistent with the role of defense counsel.142 I
witnessed public defenders that refused to file motions for their clients because
they were afraid of getting the judges upset,143 others who came to accept a system
that detained poor people for weeks after arrest without meaningful access to
counsel,144 and others still who simply did not respect the people they
represented.145 I heard myriad stories of lawyers for the poor who lost their zeal to
represent their clients,146 and because they were guided by a corrupt value system,
these lawyers often did not appreciate how their educational shortcomings in the
first two areas rendered them a less qualified lawyer.147
A. Grooming Reformers: Reimagining How We Teach Lawyers to Restore Our
Democracy
It was at this time that I became a student of organizational culture and came
to truly appreciate how this system of injustice came to be tolerated by everyone in
140
For example, skilled criminal defense lawyers understand that discovery can be a tool to
gather information as well as to try to set up the exclusion of evidence. How the lawyer requests
information pursuant to the applicable discovery statute and subsequently litigates issues that arise
are functions of the goal of the representation.
141
For example, the norm for a trial advocacy course is to start with a set fact pattern. The
facts are taken as given. This is where the lawyering begins. In reality, the bulk of the lawyering
goes into shaping the universe of facts that will be used to try a case. Through investigation,
discovery, motions practice, client interviewing, and a host of other vehicles, the lawyer is
continuously both gathering information and seeking to exclude evidence that is harmful to his or her
case. See Jonathan A. Rapping, Evidence Blocking: How the Defense Can Define the Legal
Landscape At Trial, 33 AM. J. TRIAL ADVOC. 1 (2010). But trial advocacy courses often inadvertently
send a message that minimizes the role the lawyer plays in developing the facts available at trial.
142
Shaky Ground discusses some of the values that are fundamental to the work of defense
counsel including: 1) a duty of loyalty to the client, 2) a duty to zealously advocate the client’s cause,
3) a duty to be thorough and prepared, and 4) a duty to communicate with the client. See Shaky
Ground, supra note 16, at 164.
143
See National Crisis, supra note 48, at 348.
144
Winds of Change, supra note 48, at 189–90.
145
See National Crisis, supra note 48, at 348.
146
For discussion, see Winds of Change, supra note 48; see also Shaky Ground, supra note 16;
see also National Crisis, supra note 48.
147
See Winds of Change, supra note 48, at 191.
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it. While I was involved in training public defenders across the country, I came to
realize that defenders need a comprehensive understanding of how all of these
lessons work together to advance the representation. But, even a program that
does this will not be sufficient when defenders are driven by a value system
inconsistent with what their clients deserve. I also saw that a one-time training
program—no matter how good—could never counteract the continuous and
pernicious influences the lawyer would return to when the instruction concluded.
My experience and study taught me that public defenders needed to be taught
a new set of skills and values, and provided ongoing support as they fought against
the pressure to abandon these ideals. The realization of the role that culture plays
in shaping public defenders led me to develop an organization committed to
building a community of public defenders with the support necessary to resist these
cultural pressures as they developed into a movement of advocates who would
drive criminal justice reform. And so the non-profit, Gideon’s Promise, was born.
After I began my law school teaching career, I began to also focus on how
these cultural forces shape other players in the criminal justice system. As I
considered my role as a law school teacher, against the backdrop of my experience
in the criminal justice arena, I began to appreciate just how critical a role law
schools could play in grooming a generation of graduates to reshape a criminal
justice system that lives up to our constitutional ideals. I began to understand that
law schools have the potential to instill important values in law students, and to
provide graduates the strategies necessary to retain these values as practicing
lawyers in systems that are hostile to them. With this insight, I welcomed the
opportunity to develop a comprehensive curriculum, based on my work in the field
with public defenders, that would allow my law school to begin to live up to this
potential. Thus, the Honors Program in Criminal Justice at Atlanta’s John
Marshall Law School was born.
A brief discussion of the philosophy behind Gideon’s Promise, and how it
informs the curriculum of the Honors Program in Criminal Justice, will help to
illustrate how law schools can help address our criminal justice crisis.
B. Gideon’s Promise
In 2007, my wife and I founded Gideon’s Promise148 in order to develop a
community of skilled, passionate, ethical public defenders that would introduce a
new value-set into the systems within which they work in an effort to begin to
transform the existing culture of injustice. At the heart of this transformative
model is the three-year Core Program, designed to recruit, train, and support new
public defenders as they both work to raise the standard of representation for their
clients immediately and begin the process of developing into tomorrow’s indigent
148
At the time it was founded, the organization was named The Southern Public Defender
Training Center. The name was changed to Gideon’s Promise in 2013.
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defense leaders. Through a process of “values-based recruitment, training, and
mentoring,”149 Gideon’s Promise seeks to identify defenders who are receptive to a
desired set of values,150 teach them how to practice consistently with these values
in challenging environments, and provide ongoing guidance as they struggle to
remain true to these values as they develop as lawyers.
The Gideon’s Promise Core Program is unique in several ways. First, each
new class begins its three-year experience with a fourteen-day training that teaches
more than two-dozen topics foundational to the work of the public defender.
These sessions build on one another, and faculty constantly stress that they are
each part of a toolkit that must be used in concert to effectively represent the client.
They are examined in the context of a hypothetical case the class prepares over the
two weeks, illustrating how each is an integral part of the larger representation,
with the result dependent on how the lawyer handles every aspect of the case. In
order to ensure that the faculty members are coordinated in the presentation of
these materials, each must complete the Gideon’s Promise Trainer Development
Program151 to learn the curriculum and how each session fits into the broader goals
of the training.
Second, each session is designed to ensure the participants understand how
the topic is applied in practice. The trainees’ performance during workshops
determines the information they learn about the case, or whether they can
successfully suppress or exclude evidence, enabling them to appreciate how their
decisions impact the outcome of the litigation.
Finally, while this model that teaches substantive law, procedure, and skills in
an integrated and applied way is innovative and distinctive, what makes the model
truly unique is its focus on teaching lawyers a set of values, identifying systemic
challenges to practicing consistently with those values, and working with them to
develop strategies to overcome these hurdles.152 Throughout the curriculum,
149
See Shaky Ground, supra note 16, at 175–80.
Gideon’s Promise has established partnerships with over 35 public defender offices from
fifteen states (AL, AZ, GA, KY, LA, MS, PA, NE, NC, NY, SC, SD, TN, TX, and WV). Lawyers
with less than three years’ experience as a public defender from any of our partner offices are eligible
to apply. Gideon’s Promise also helps recruit recent law graduates to join partner offices. Gideon’s
promise welcomes a new class each summer. The smallest class included 16 defenders in 2007. In
2014, we welcomed sixty public defenders, our largest class to date. In 2014 Gideon’s Promise
established a partnership with the state of Maryland, the first time Gideon’s promise will apply its
model to a statewide public defender system.
151
For more information about the Trainer Development Program, visit Trainer Development
Program, GIDEON’S PROMISE, http://gideonspromise.org/trainer-development-program/ (last visited
May 25, 2015).
152
An example of this can be seen in how Gideon’s Promise teaches lawyers to resolve ethical
dilemmas consistent with client-centered values. Every law graduate learns the Rules of Professional
Conduct. Rule 1.6 establishes a duty of confidentiality requiring a lawyer to refrain from sharing “all
information relating to the representation, regardless of the source.” See MODEL RULES OF PROF’L
CONDUCT R. 1.6 cmt. 3 (2013). Rule 3.3 requires a duty of candor to the tribunal. See MODEL RULES
OF PROF’L CONDUCT R. 3.3 (2013). While every lawyer should have learned these two rules, few are
150
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instructors push students to identify core values and impediments to acting
consistently with them before working through various responses to these
challenges.153 Because discussions of the values are not isolated in a single,
discreet session, but instead are woven throughout the entire curriculum,
participants appreciate that these values must drive every decision they make.
Recognizing the power of a corrupt culture to reshape even the most
committed professional, Gideon’s Promise provides ongoing support to its lawyers
as they work to practice consistently with this value-set in hostile environments.
These lawyers are connected to a community of like-minded advocates who
reinforce the lessons taught.154 To provide further support and more readily drive
systemic change, Gideon’s Promise has developed a comprehensive community of
change-agents that collectively work to infuse the criminal justice system with a
set of values consistent with justice.155 And while this model is essential to ensure
taught how to resolve tensions between them consistent with justice driven values. One such value is
the duty of loyalty to the client. See Shaky Ground, supra note 16, at 164–65.
Once we teach this value, and what it means, we then introduce a challenge to practicing
consistently with it. For example, imagine a client, charged with possession of cocaine, shared with
his lawyer that he had a prior conviction for possession of cocaine. Suppose a judge, considering a
defense request for pretrial release, is unaware of any prior convictions. How should defense counsel
respond to a direct request from the judge about whether the client has any prior convictions? What
if the judge pushes harder to get the lawyer to answer?
Once we introduce the challenge, we start to examine possible strategies for resolving the
dilemma. We start by examining a spectrum of responses. Some are clearly unethical. The lawyer
who says, “My client absolutely has no prior convictions,” is likely in violation if Rule 3.3. The
lawyer who says, “Yes, my client has a prior conviction for possession of cocaine,” is clearly in
violation of Rule 1.6.
As we examine unethical responses, we also consider the likely motivation of the lawyer. The
first lawyer is motivated by loyalty to the judge, or an assumption that his obligation to the judge
trumps any obligation to the client. The second lawyer is motivated by loyalty to the client.
Then, through simulated courtroom scenarios, we have the students work to resolve the
dilemma, invariably eliciting a host of responses that fall along a spectrum—some being more
consistent with the value of client loyalty than others. “I am not at liberty to share that with you,”
“What my client shares with me is confidential,” “I have not verified anything that suggests my client
has any prior convictions,” “I have no information that I am able to provide the Court.” For each, we
discuss the ethical propriety and the extent to which the response is beneficial to the client. As the
judge (played by a faculty member) pushes (“Well, have you asked your client?”) we can explore the
students’ understanding of the ethical limits. In this setting, the lawyers can solidify their
understanding of their obligation to each client, anticipate challenges that make it challenging to
remain loyal to the client, and develop a set of responses to push back against these pressures.
153
Impediments might be a judge pushing a lawyer to withdraw a motion because she is more
concerned with moving the case quickly or a prosecutor threatening to withdraw a plea if the lawyer
insists on having time to investigate or litigate important legal issues.
154
During the three-year Core Program, members are given mentors who reinforce these
lessons in the field, and gather as a collective community every six months for follow-up training and
community building. Since its inception, Gideon’s Promise has trained over 300 defenders who
embrace a common vision and have adopted a shared value-set.
155
Gideon’s Promise has since developed a Graduate Program to continue developing its
graduates into trainers, mentors, and future leaders; a Leadership Program to work with the chief
public defenders it partners with as they consider how to best support their young lawyers and infuse
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that the new defender continues to be guided by the taught value-set throughout his
or her development, thereby contributing to the necessary reform, it is the
curricular component of this model that is most instructive for law schools if they
are to contribute to the effort to populate the criminal justice system with the
change agents so desperately needed.
C. Honors Program in Criminal Justice
I joined the faculty of Atlanta’s John Marshall Law School in 2007 because of
the opportunity to help educate future criminal justice professionals and the
school’s stated commitment to developing lawyers committed to social justice.156 I
was just beginning to build Gideon’s Promise and saw a synergy between my work
with indigent defense and the mission of the law school. Fortunately, the faculty at
AJMLS also saw this as a unique opportunity to help better prepare our graduates
interested in criminal law, and in 2011 I was invited to develop the Honors
Program in Criminal Justice.157 Inspired by my work with Gideon’s Promise, the
Honors Program was developed as a three-year curriculum that sought to integrate
a comprehensive criminal law curriculum, to teach students how the substantive
law and skills taught apply in practice, and to both instill in students a justicefocused value-set and prepare them to practice consistently with that set of values
throughout their careers. And because the Honors Program was designed to train
criminal justice professionals generally, it provides an opportunity to spread the
influence of the Gideon’s Promise model more broadly.158
The Honors Program uses an innovative curriculum to prepare a new
generation of criminal justice professionals. For starters, the program teaches a
core selection of criminal law related courses in an integrated manner. Criminal
Law, Criminal Procedure (both investigation and adjudication), evidence, and
advanced evidence (introducing forensic issues and other topics relevant to the
practice of criminal law today) are all taught by a faculty of teachers that meet
their offices with this shared value-set; a Trainer Development Program to ensure all trainers
embrace, and understand how to teach the curriculum, as well as to teach it to teachers beyond the
Gideon’s Promise community in an effort to export the model; and a Law Clerk Program to inspire
and prepare future public defenders to join the effort to transform public defense in systems most in
need of reform.
156
According to its mission, AJMLS is committed to educating students “who show promise
of making positive contributions to the profession, legal system or society,” and is “dedicated to
preparing highly skilled, ethical, and professional lawyers who possess a strong social conscience.”
See Mission, JOHN MARSHALL LAW SCHOOL, http://www.johnmarshall.edu/about/mission/ (last
visited May 25, 2015).
157
To learn more about the Honors Program in Criminal Justice, visit
https://www.johnmarshall.edu/futurestudent/j-d-honors-program-in-criminal-justice/.
158
For the first three years, the Honors Program welcomed small classes of less than twenty
students. These students began the Program upon entering AJMLS. As the demand from existing
students has grown, we are in the process of modifying the curriculum to accommodate students who
wish to join after the first year.
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regularly to coordinate instruction. In this way, teachers can reinforce lessons
from other courses and ensure students appreciate how issues overlap. Using a
simulated case, students build a case file over their first two years, receiving
documents relating to the case file in each of the core courses as the respective
issues are introduced.159 As new material is provided, the simulated case file is
developed, allowing students to both discuss new issues and revisit prior
discussions. Because these courses are taught over the first two years, students are
forced to continue to think about how lessons from the first year are impacted by
these new revelations.
In order to ensure that students appreciate how these lessons are applied in
practice, they take a six-credit hour Integrated Advocacy Course through which
they engage in simulated pretrial litigation and trial advocacy using the case file
they built during the core curriculum described above. This capstone course
ensures the students reassess the case with a complete file while having a firm
grasp of how lawyering decisions from the beginning of the case informed the
content of the file. This course provides a clear understanding of how these earlier
decisions impact the larger litigation strategy while also illuminating the interplay
between legal doctrine and lawyering skills.
In addition to requiring the above-mentioned courses, students in the Honors
Program must take an additional credit hour of both criminal law and criminal
procedure (investigation), both of which are offered in the first year.160 This
allows the professors to spend additional time discussing the simulated case that is
the vehicle through which the core curriculum is integrated, and focusing on how
lawyering decisions might have impacted the cases discussed and the values that
likely motivated the behavior of the criminal justice professionals behind the cases.
The students are also explicitly introduced to lawyering values, taught how
the existing criminal justice system can be hostile to those values, and pushed to
consider how criminal justice professionals can practice in accordance with these
values. In their first year, students take a two-semester course called Criminal
Justice Lawyering161 through which they consider what justice means and the role
of various criminal justice professionals in promoting justice. Through books,
articles, documentaries, and outside speakers, students gain insight into how our
159
For example, in criminal law students receive basic police reports and defense investigative
memos as they discuss the appropriate charging decisions, possible defenses, and tasks that
prosecutors and defense lawyers need to do as more information is revealed. In criminal procedure
(investigation), students receive additional documents that raise issues about the evidence collected
(physical evidence, statements, and identifications). In criminal procedure (adjudication), documents
introduce additional procedural issues such as how to effectively raise discovery, Brady, or severance
issues.
Documents provided in evidence and advanced evidence raise additional issues
corresponding to the material taught.
160
While the traditional curriculum requires three credit-hours each of criminal law and
criminal procedure, Honors program students take four credit-hours of each.
161
The name of this course was changed from Introduction to Criminal Justice to more
accurately reflect its content.
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criminal justice system operates in reality and explore the extent to which it
functions in accordance with our aspirational ideals. Students are pushed to
examine where our system falls short of these ideals and the role of criminal justice
professionals in facilitating this justice gap. Finally, they are asked to consider
how they might respond to systemic influences inconsistent with these ideals.
These values are revisited throughout the three-year curriculum. In the third
year, in addition to taking a course in criminal law ethics, the participants spend
two semesters in a criminal justice related externship through which they can gain
insight into how the issues raised in the program manifest themselves in reality.
While going through their externship, they participate in a weekly class designed
to prod them to explicitly apply the programmatic lessons to their actual
experience.162
In this sense, graduates of the Honors Program will enter the profession with a
comprehensive knowledge of criminal law, an appreciation for the interplay
between the substantive courses they took, an understanding of how to apply the
lessons learned in practice, and a foundation that allows them to do so consistent
with a core value-set essential to live up to the American notion of justice.
VII. CONCLUSION
In stark contrast to the fundamental ideals enshrined in our Constitution, the
American criminal justice system as it now exists is largely defined by a set of
values that is inconsistent with justice. Ours is a system that dehumanizes certain
populations, and therefore embraces a lesser standard of justice for members of
those communities.163 This value set shapes the professionals responsible for
administering it, who in turn perpetuate a system of injustice. Because these
internalized values lead criminal justice professionals to pursue outcomes
inconsistent with justice, changing the rules that govern their behavior will be of
limited value in driving reform. While policy reform may force those who
administer the system to play by a different set of rules, until they are guided by a
new set of values they will continue to work to achieve results inconsistent with
justice.
Therefore, if we are serious about realizing a system of justice that is fair and
equal, we must transform the value set that drives our politicians, judges,
162
Although, a shortcoming of the curriculum is that AJMLS does not offer a criminal law
clinic, so that students can apply the lessons taught in the program under the tutelage of faculty
members who understand the curricular goals and how the clinical experience is designed to fit into
the larger teaching methodology.
163
See Jonathan A. Rapping, Keynote Address, Reclaiming Our Rightful Place: Reviving the
Hero Image of the Public Defender, 99 IOWA L. REV. 1893, 1903 (2014) (arguing that our lack of
commitment as a society to ideals consistent with justice is driven by our perception of those accused
of crimes as less than human).
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prosecutors, and defenders. Because so many of these professionals are lawyers,
our nation’s law schools play a critical role in promoting a just society.
Law schools have been criticized for their failure to adequately educate future
lawyers, but the bulk of the criticism has focused on legal academia’s failure to
teach skills and values necessary to effectively practice law. Recognizing
academia’s obligation to develop lawyers committed to the public interest, a
smaller group of critics have also challenged law schools to inspire students to
consider social justice careers. But if we are to transform legal systems designed
to drive unjust outcomes, we must do more than equip law graduates with the skills
and values necessary to be effective practitioners and steer them into careers that
serve the public interest. We must ensure that they appreciate the challenges they
will face as they strive to provide clients with what they deserve and arm them
with strategies to change those systems. If our graduates are to resist systemic
pressures to accept the status quo, they need more than law schools currently
provide.
Teaching law graduates to be as effective as possible within broken systems is
not good enough. We must begin grooming a generation of change agents
prepared to infuse legal systems with values consistent with justice.
Nowhere is this mission more important than in the criminal justice arena. If
law schools are to live up to their obligation to produce lawyers who help create a
more just society, they must start by preparing criminal justice professionals to
challenge the status quo.
In a 1910 address to the United Kingdom House of Commons, Sir Winston
Churchill famously said, “[t]he mood and temper of the public in regard to the
treatment of crime and criminals is one of the most unfailing tests of the
civilization of any country.” The mood and temper to which he refers is a
reflection of our values. We cannot alter our demand for justice, and therefore, our
will to engage in the hard work of reform, without recalibrating the values that
guide us. This mission is as important as any that a law school might embrace.